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LAW AND ORDER IN INDUSTRY 



THE MACMILLAN COMPANY 

NEW YORK • BOSTON • CHICAGO • DALLAS 
ATLANTA • SAN FRANCISCO 

MACMILLAN & CO., Limited 

LONDON • BOMBAY • CALCUTTA 
MELBOURNE 

THE MACMILLAN CO. OF CANADA, Ltd. 

TORONTO 






LAW AND ORDER IN 
INDUSTRY 

FIVE YEARS' EXPERIENCE 



BY 
JULIUS HENRY COHEN 



N*m fork 

THE MACMILLAN COMPANY 

1916 



All fights reserved 









Copyright, 19 16 

By THE MACMILLAN COMPANY 

Set up and electrotyped. Published February, 1916. 



FEB 10 1916 
©JI.A418762 



TO MAX M. SCHWARCZ, 

OF THE SMALL BAND WHO BLAZED 

A TRAIL THROUGH THE THICK FOREST, 

THE FIRST TO ENTER THE LAND 

OF MYSTERY. 

PROUD, BRAVE, LOYAL, A DEAR AND 

A GOOD FRIEND TO ALL WHO 

LABORED TRULY. 



TO THE READER 

Magazine writers have written sketches and Govern- 
ment investigators have compiled statistics about the 
New York experiences with the "Protocol" — a curious 
animal newly arrived in the industrial menagerie. (He 
is but five years old.) No one has tried to take his pic- 
ture in motion. 

The photographer here is a lawyer. Some people 
think that disqualifies him from being a photographer, 
or for that matter, from being anything human. Worse 
still, he is a lawyer for "capitalists," i. e., men who 
employ labor, and who, it is assumed, generally do no 
labor themselves — like the lawyer. In common with 
his kind, the lawyer likes to study the antics of animals. 
This one is alive, very much alive. Perhaps the picture 
is not focused as you would like it. You may like it 
at a different angle. Then run the reels over again and 
be your own censor. In other words, here are the facts: 
draw your own inferences if the inferences in the book 
are not — to your mind — sound. 



vu 



CONTENTS 

CHAPTER PAGE 

To the Reader vii 

Introduction xi 

I. Anarchy i 

II. The Closed Shop 14 

III. The Policy of the Protocol 28 

IV. The Joint Board of Sanitary Control 43 

V. The Board of Grievances 61 

VI. The Chief Clerks and the Deputies 69 

VII. A Sidelight -, 74 

VIII. The New York Cloak Business. 84 

IX. The Crisis of 1913 101 

X. 1914 — The Committee on Immediate Action. ... 124 

XI. Hiring and Discharging 128 

XII. 1914-1915. The Clash 136 

XIII. 191 5. The Board on Arbitration. What is 

"Fair and Reasonable" ? 153 

XIV. The Termination of the Protocol 158 

XV. The Mayor's Council of Conciliation 168 

XVI. The New Trial Board 178 

XVII. The Revival of the Protocol 186 

XVIII. Inferences 191 

XIX. Law Breaking 205 

XX. The White Protocol Label 216 

XXI. A Federal Industrial Council 225 

ix 



x CONTENTS 

CHAPTER PAGE 

XXII. Vision and Effort 229 

Appendix A — Text of the Protocol Agreement 243 

Appendix B — Rules and Plan of Procedure 249 

Appendix C — Decision of Board of Arbitration 258 
Appendix D — Findings and Recommendations of 

Council of Conciliation 280 

Appendix E — Industrial Agreements . : 288 

Appendix F — Skeleton Outline of Provisions 

of a Bill 291 



INTRODUCTION 

The business of making clothes for women brings 
up for the average male a picture of a highly expensive 
dressmaker's establishment (to which his wife or daughter 
repairs but too often for his pecuniary comfort), a tene- 
ment house sewing machine with a sick, overworked 
mother and a string of helpless children scampering 
about, or a "sweatshop" that the Board of Health 
ought to suppress — and why doesn't it? — or possibly 
a Montague Glass play. But to those who know, it is 
an industry that employs in New York alone over one 
hundred thousand people, has a capital investment of 
$100,000,000, and in the industries of the country ranks 
eleventh in number of workers employed and fifteenth 
in value of products manufactured. In New York City 
alone over half of all the clothing worn by the men and 
women in the United States is made. It is estimated 
that seventy per cent of the women's clothing manu- 
factured in the United States is made in New York City. 
According to the census for 1909, the annual output of 
women's clothing was $266,477,000. It is an industry 
where the dividing line between capitalist and laborer 
is not easy to locate. With a few hundred dollars a 



xii INTRODUCTION 

worker can buy a machine, rent a small loft, secure 
cloth on credit, and, if he has executive ability and works 
hard, become a "boss." As is generally known, it is 
one of those industries, both on the employers' and on 
the workers' side, classified as "the Hebrew trades," 
the percentage of Italian workers being very small. 

The Protocol of Peace in the cloak and suit industry 
was signed on September 2, 1910, and is to be found as 
Appendix A. It was signed after a very bitter strike 
that involved nearly sixty thousand people. It has 
preserved general peace in the industry since 19 10, in 
spite of the fact that during that time serious crises 
have arisen in the industry. It came about through 
the intervention, first, of Louis D. Brandeis, and later 
of Louis Marshall, with the aid of Meyer London, the 
lawyer for the Union, and myself, as counsel for the 
employers. By this document there was created a 
Board of Arbitration, consisting of the appointee of 
both sides and a third person chosen by both, a Board 
of Sanitary Control made up of representatives of the 
employers, workers, and the public, and a Board of 
Grievances, made up of representatives of both sides. 
The agreement in essence is, in its nature, a fundamental 
constitution for the doing of business between the workers 
and the employers, with a supreme judicial tribunal, a 
conciliation and mediation department, a department 
for the establishment of legislation by consent of both 



INTRODUCTION xui 

parties, and an administration department. The Board 
of Arbitration — the supreme judicial tribunal — was 
originally made up of Louis D. Brandeis as chairman, 
Hamilton Holt, and Morris Hillquit. In 191 2 Mr. Hill- 
quit resigned and his place was taken by Dr. Walter E. 
Weyl. In 1914 Dr. Weyl resigned and his place was 
taken by Mr. William 0. Thompson (counsel for the 
United States Commission on Industrial Relations), 
the other two members of the Board continuing until 
the termination of the Protocol in May, 191 5. The 
Joint Board of Sanitary Control is made up of Dr. Wil- 
liam J. Schieffelin, chairman, Miss Lillian D. Wald, 
and Dr. Henry Moskowitz, as representatives of the 
public, with two representatives of the employers and 
two representatives of the unions. The Director of the 
Board, under whose supervision the work is conducted, 
is Dr. George M. Price, author of "The Modern Fac- 
tory." 

Through the institutions created by the Protocol, 
the industry was lifted to a higher plane of sanitary and 
health protection regulation, with marked material ad- 
vances to the workers. Although the Protocol was 
terminated in May, 191 5, a few months later, through 
the conciliatory efforts of the Mayor's Council of Con- 
ciliation, consisting of Dr. Felix Adler, the leader of the 
Society for Ethical Culture, Walter C. Noyes, former 
judge of the United States Circuit Court of Appeals, 



xiv INTRODUCTION 

George W. Kirchwey, a former Dean of the Columbia 
Law School, Henry Bruere, the City Chamberlain, 
Louis D. Brandeis, the former head of the Board of 
Arbitration, and Charles L. Bernheimer, the chairman 
of the Committee on Arbitration of the Chamber of 
Commerce, the Protocol was revived for two more years. 

It was copied in the dress and waist industry in New 
York, the clothing and cloakmaking industries in Chi- 
cago, the cloak and dress and waist industries in Boston 
and in Philadelphia. In New York City it was followed 
also in three other branches of the needle-working in- 
dustry — the misses' and children's wear, wrappers and 
kimonos, and muslin underwear. 

Through Protocol institutions for five and a half 
years the cloak industry in New York has been an ex- 
periment station for new methods of dealing with the 
relations between employer and worker. In consequence, 
it has been the subject of scientific research, govern- 
mental investigation,* sanitary regulation,! magazine 
composition, J and editorial comment, and every fresh 
immigrant who expects to earn a living with the aid 
of a needle learns soon after his arrival that the word 

* See Bulletins, Bureau of Labor Statistics, Department of Labor, 
Nos. 98, 144, 145, 146, 147. 

t See Reports, Joint Board of Sanitary Control. See Sanitary Con- 
trol of an Industry by Itself by L. D. Wald, Report of International 
Congress of Hygiene and Demography, 19 13. 

\ Munsey, July, 1913; Survey , February 1, 19 13. 



INTRODUCTION xv 

"Protocol" spells something new and mystical in the 
industrial world. What is it? How came it about? 
What lessons can be garnered from its experience? These 
are the questions to which some answer, more or less 
incomplete, may be found in the pages to follow. 

There has been much dissatisfaction with the work 
of the Federal Industrial Relations Commission. But 
in the testimony and reports (including those of the 
special investigators) will be found material which it 
is safe to predict will be drawn upon for many years to 
come by students and legislators. Though here in the 
effete east, we dispose of the entire work of the Com- 
mission when we satisfy ourselves that the chairman's 
judicial poise and temperament have disappeared — 
though he himself is authority for the statement that 
he never possessed any — yet congressmen will find plenty 
of material upon which to erect statutory proposals and 
fill volumes of Congressional Records with debate. 

One contribution the Commission has already made. 
After careful study, the Commission is unanimous in 
finding that the best hope for future industrial peace 
lies in the direction of trades unions working with em- 
ployers' associations in joint agreements — collective 
bargaining, so called. Through this method all agree 
we shall arrive at a better industrial day, meet the real 
causes of industrial unrest, check abuse of power by em- 
ployer and worker and bring order out of chaos. 



xvi INTRODUCTION 

The Commission's report contains the following: 

We believe that collective bargaining and joint agree- 
ments are preferable to individual bargaining, and we 
believe that the general public should support the unions 
in their efforts to secure collective agreements. But this 
can only be done through the influence of public opinion 
without the force of law. It is based on the conclusion 
that two opposing organizations, equally strong, are able 
to drive out abuses practiced by the other.* 

The employers on the Commission (Ballard, Wein- 
stock and Aishton) say that as representatives of em- 
ployers they agree with the members of the Commission 
who represent the general public and also with those 
representing organized labor "in believing that under 
modern industrial conditions, collective bargaining, 
when fairly and properly conducted, is conducive to 
the best good of the employer, the worker, and society, "f 

But the work of the Commission is thoroughly disap- 
pointing to those who have passed the elementary grades 
of education in the problem of industrial disputes. No- 
where is the material so collated or put together that 
the American people (meaning thereby the American 
employer, the American worker, and the American 
consumer) can form an intelligent judgment. 

The Commission itself says that though public opinion 

* Report of Federal Commission on Industrial Relations (1915), p. 375. 
t Id., p. 414. 






INTRODUCTION xvii 

practically decides who shall win, where both sides are 
fairly well balanced in strength "such public opinion, 
however, to be of value, must be enlightened. Under 
prevailing conditions this is almost impossible. All 
that the public is now able to get, as a rule, are garbled 
and ex parte statements, more or less misleading and 
unreliable, which simply tend to confuse the public 
mind." * The crying need for definite information on 
the actual workings of collective bargaining, its strength, 
its weaknesses, is not met by any of the reports of the 
Commission. It has failed to meet the expectations 
of those who hoped to get a reliable, unbiased survey, 
such as one finds in the report of the Industrial Council 
of Great Britain.! 

The majority report (Manly-Walsh-Lennon-O'Con- 
nell-Garretson) says: 

The fundamental question for the Nation to decide, 
for in the end public opinion will control here as else- 
where, is whether the workers shall have an effective 
means of adjusting their grievances, improving their 
condition, and securing their liberty, through negotiation 
with their employers, or whether they shall be driven by 
necessity and oppression to the extreme of revolt.J 

* Report of Federal Commission on Industrial Relations (191 5), 
pp. 409, 410. 

t Reprinted as Bulletin No. 133, U. S. Department of Labor. 

% Report of Federal Commission on Industrial Relations (1915), 
p. 89. 



xviii INTRODUCTION 

But suppose you have the fullest acceptance of the 
principle and theory of collective bargaining? Suppose 
you have the two trade organizations, employers' asso- 
ciation and union, working together, suppose there is 
the fullest opportunity to adjust grievances, inhibition 
against strikes and lockouts, the fullest and frankest 
" recognition of the union." What then? Does it work? 
If it does, how? If it does not, why? What are the 
failures as well as the successes? What happens if for 
the time being either organization is stronger than the 
other? Are there abuses of power? Where? Where 
does the public benefit? Where is it hurt? What should 
the public do about it? These questions the Commission 
has failed to answer. If experience is the best, if not 
the only lamp to guide one's feet, perhaps an intensive 
study of five years' actual experience in one industry 
may answer these questions. 



LAW AND ORDER IN INDUSTRY 



LAW AND ORDER IN INDUSTRY 
CHAPTER I 

ANARCHY 

In 1907 I received my introduction to the cloak and 
suit industry of New York. At that time, during the 
lunch hour Fifth Avenue presented a remarkable sight. 
Where once ladies and gentlemen of fashion promenaded, 
workingmen and women, showing unmistakable evidence 
of newness to the ways of the country, crowded the pave- 
ments and the center of the highway. An eagerness for 
a breath of fresh air and a sight of the shop windows 
brought about a condition ruinous to the department 
stores which had long prospered upon that avenue. Al- 
ready realty owners along the street had hung out signals 
of distress. The change in Fifth Avenue below Twenty- 
third Street, now so pathetically disclosed in vacant 
buildings and "To Let" signs, was then in process. 

In the hope of alleviating what seemed to be an in- 
excusable and remediable condition of affairs, an asso- 
ciation of Fifth Avenue business men prevailed upon 
some of the factory employers to endeavor to change 
the lunch hour of the working people. One of the leading 



2 LAW AND ORDER IN INDUSTRY 

cloak manufacturers on Fifth Avenue succumbed and 
issued an order to the workers that the hour for luncheon 
would thereafter begin earlier than usual. The Czar 
in Russia never did worse! Without consulting them, 
in a free country, the employer had actually interfered 
with the inalienable right of the toilers to eat between 
twelve and one o'clock and to go upon Fifth Avenue 
whenever the ten minutes they used for food had ex- 
pired! 

The strike that followed this effort to redeem Fifth 
Avenue necessitated the services of a lawyer for the em- 
ployer. It was my introduction to the Industrial 
Workers of the World and anarchy in industry. One of 
the circulars then distributed by the workers was headed 
in big red letters: "War! War! War!" After weeks of 
effort in the police courts and with the District Attorney, 
we were obliged to present the matter to the Supreme 
Court of the county. An able and fair judge wrote, 
upon the basis of the evidence we presented to him, the 
following: 

It is evident that instead of a manly, self-respecting 
demand to right a grievance, whether real or believed to 
be such, fortified by reason and argument, methods have 
been employed by the defendants that are un-American, 
intolerable, abhorrent to all ideas of personal liberty 
and in defiance of the right of the individual to determine 
for himself under what conditions he prefers to labor. 
Every individual is free to exercise any lawful calling 



ANARCHY 3 

without being subjected to acts of terrorism by those 
who are not in accord with his conception of the manner 
in which he is pursuing his vocation.* 

So far as public sympathy was concerned, it went to 
the side of the strikers. The magistrates before whom 
the assault cases were brought rarely punished, and if 
they punished, fined lightly. The District Attorney's 
office did its best, — which was very little. The Police 
Department responded, but infrequently. And when the 
strike was all over, the employer had scored "a great 
victory. " He had beaten the working people into sub- 
mission. It had cost him a pretty penny, but he had 
won. He paid his lawyer's bill with a little feeling that 
it was a charge against loss rather than a credit to profit, 
but, nevertheless, he had won. We both learned that 
a single employer fighting a mass of work-people, with 
public opinion against him from the very outset, is at a 
great disadvantage; and, more important still, we learned 
that the machinery of the law is wholly inadequate to 
meet such situations. 

I advised the formation of an association of employers. 
I was told that it was impossible. Why? The cloak 
manufacturers could never agree upon anything, and if 
they did, they would not live up to their agreements. 
I had rarely seen so much distrust, outside of politics. 

* A. Beller & Co. v. Garment Workers' Union, Local No. 61, Industrial 
Workers of the World et al., New York Law Journal, March 27, 1907. 



4 LAW AND ORDER IN INDUSTRY 

Apparently not even an enlightened self-interest could 
induce competitors to sit down with each other and 
agree upon a plan for cooperation in business. The 
advice went for naught. Anarchy on the workers' side 
was matched by anarchy on the employers' side. The 
difference was one of kind and degree. In the case of 
the employers it was anarchy in the sense of lawlessness 
in their competition with each other and in their un- 
willingness to abide by the rules of their own making. 
But at least the workers knew one thing that the em- 
ployers did not. The Yiddish and Italian press had 
put it before them daily in big red headlines, and it had 
been dinned into their ears night and day by enthu- 
siastic leaders. It was the simple lesson of organized 
collective dealing with industrial problems. In 1907, 
1908, and 1909 a union of cloak manufacturers was 
something to poke fun at. Around the Hoffman House 
tables the lunch-hour statesmen smoked their cigars 
and gave their final and conclusive verdict. "A beauti- 
ful dream. Who but a lawyer would think it practica- 
ble?" 

But there were many ferments in the pot. In her 
story of the Henry Street Settlement Miss Lillian Wald* 
has given us the inner history of the beginnings of the 
East Side socialistic and trades union movement in the 
garment industry. The trade union does not owe its 

* "The House on Henry Street." 



ANARCHY S 

origin to the decent employer, considerate of the well- 
being of the workers in his shop. The real propagandist 
for trade unionism is the employer who is not yet past 
the kindergarten stage of shop morality. He furnishes 
the material for such stories as " Comrade Yetta." He 
literally makes the existence of a trade union possible, 
for without him there would be no union. His grasping, 
his tyranny, his indifference to the ordinary human 
rights of working men and women make the basis of 
factory laws, industrial commissions, and clear the field 
for I. W. W. radicals. These men at least earn our 
gratitude in one respect; they breed their own cure. 
W. J. Davis, President of the Trade Union Congress 
in Great Britain held in 1914, said: 

Trade unionism took its rise more from the employer 
than the labor leader. It came from the unjust employ- 
ers, who, not satisfied with unfair conditions, placed 
indignity after indignity on the worker until one of their 
number had the pluck to rebel, and who, by the timid 
murmurings of the opprest, was secretly proclaimed a 
leader. By common consent of the employers, and as 
they or their friends made and administered the laws, 
he was persecuted. The persecution, however, instead of 
annihilating the leader, produced leaders. 

In the manufacture of women's garments in New 
York City were men of fine culture, fine sensibility, 
broad and liberal training, who had come to the top 
through their sheer innate intellectual and artistic ability. 



6 LAW AND ORDER IN INDUSTRY 

These men scorned to treat their working people un- 
humanely. Many are the stories that could be told of 
their interest in the personal lives of men and women 
in their employ. But, unfortunately, in their trade as 
in our profession, there are men of different standards 
working side by side, and there was no way of separating 
the sheep from the goats. That there were grievances 
on the part of the workers in the industry was beyond 
question. That they had tried to redress these grievances 
and had failed was equally beyond question. It was 
an industry of intermittent strikes. The cure for any- 
thing wrong was the strike. It was the workingman's 
panacea for all his ills. During the busy season the 
workers had the boss by the throat. During the slack 
season he reciprocated and turned the tables on them. 
The merry game went on, each side lying in wait for 
the other. Employers freely signed contracts with the 
union, guaranteeing fine wages and good conditions. 
The ink was scarcely dry before they became mere 
scraps of paper. The new standards were secured at 
great sacrifice. During a strike the working people 
were enthusiastic union members, literally ready to die 
for their union. As soon as the paper was signed and 
peace was declared, they lost interest, failed to pay 
dues to their union, failed to attend meetings, and the 
union lapsed into decay, to be revived only through 
another strike. 



ANARCHY 7 

A few of the leaders had grasped the philosophy of 
collective dealing and had some background of knowledge 
of trades unionism generally, but so far as the masses 
of the workers were concerned progress was made by 
explosion — not carefully controlled, as in a motor engine, 
but as highstrung, emotional men are impelled, — for- 
ward, then back, then sidewise, with much waste of 
fuel and oil and very little mileage. Gradually the 
leaders learned through bitter experience the lesson men 
learn only through bitter experience — that power, how- 
ever great, applied without moral intelligence, is worse 
than useless because it is dangerous. An automobile 
with no steering gear or brake will speedily bring destruc- 
tion to passengers and driver. With steering gear and 
brake, but under control of a headless chauffeur, it is 
still a dangerous animal. Little by little the influence 
of reason made itself felt in the union. There was less 
action and more thought. There was planning, looking 
ahead. 

One hot day, at the beginning of July, 1910, I was 
walking up Fifth Avenue when a friend handed me a 
circular printed in Yiddish. "You will be called into 
action very soon," he said. It was the circular distrib- 
uted that very day, calling upon all of the workers in 
the trade to turn out in a general strike. Within a day 
or two I was summoned to attend a conference of leading 
manufacturers, who had decided to form a protective 



8 LAW AND ORDER IN INDUSTRY 

employers* association. The time was now ripe for an 
organization of employers. The experience of my one 
client in 1907 had been matched by others. It is true 
the lunch-hour statesmen looked dubious and freely 
prophesied failure. But a condition confronted the 
employers en masse. A union, a strong union, had been 
born. To meet such a union a strong employers' organi- 
zation was necessary. The value of an organization 
of employers was now clearly apprehended. But organi- 
zation for what purpose? Organization to be pitted 
against organization, union against association, associa- 
tion against union. The dominant thought in the mind 
of the Union was to wrest power from the employer. 
The first thought in the minds of the employers was to 
restrain aggression. So far as could be observed, only a 
handful believed in the practicability of organizing 
the industry itself, regulating the power of both organiza- 
tions and making possible cooperation between them. 

The fight was bitter, intensified by the stakes at issue 
and by the feeling on both sides that each was fighting 
for its very life. Again the machinery of the law broke 
down. There were assaults. There was riot. Again 
there was a resort to the courts. Another judge, pass- 
ing upon the facts, ruled that the violence must cease: 

In aid of their purpose, defendants have employed 
illegal means. From the inception of the strike until the 
present day, members of the unions who were formerly 



ANARCHY 9 

employees of members of plaintiff's association have 
interfered with the business of the manufacturers by 
forcible entry of the shops and destruction of property 
therein, assaults and batteries of a serious nature upon 
employees who refused to stop work, threats to em- 
ployees who were not unionists to beat or kill them, 
similar threats to wives and members of the families of 
such employees, use of opprobrious epithets and picket- 
ing the streets with unruly throngs. At large expense, 
the manufacturers have been obliged to hire guards to 
conduct their employees to and from their homes or to 
provide sleeping accommodations for them in their 
shops. These facts are fully attested by over fifty 
affidavits of employees and manufacturers who have been 
threatened or whose places of business have been for- 
cibly entered and by the record of testimony in police 
courts. . . .* 

The story is not a story limited to the cloak industry, 
nor to New York City. The Mayor of Cleveland writes: 

As each strike occurs, an opportunist policy is adopted 
by the police authorities. Things are tided along without 
any clear aim or method and without any tribunal that 
can determine the right and wrong of questions involved, 
until somebody is killed or a serious riot threatens the 
destruction of property. Then public opinion momen- 
tarily clarifies; we all agree that we do not want such 
things, no matter what happens, and the police now have 
a steadied sentiment to support them; the trouble is 
over. Until this healing incident has arisen out of the 

*Schwarcz v. International Ladies' Garment Workers' Union, 68 
Misc. (N. Y.) 528; (535, 536, 537). 



IO LAW AND ORDER IN INDUSTRY 

troubled waters, about all the police can do is to repress 
the more serious disturbances. In the surging violence 
of sentiment which surrounds a strike when the men 
begin to get desperate, the police are fortunate if they 
can prevent assaults and the destruction of property; 
they are powerless to allay the fierce outbursts of emo- 
tion which stir the participants and lead them to law- 
lessness.* 

The president of the Employers' Association of Mas- 
sachusetts, writing on " Conditions Fundamental to 
Industrial Peace," says: 

. . . government under our present system cannot be 
relied upon as a compelling force to insure justice and 
protect the individual and the law-abiding community 
when corporate capital and organized labor are at war.f 

A close friend of trades unions writes that "A plea 
of trades unions for immunity, be it from injunction or 
from liability for damages, is as fallacious as the plea 
of the lynchers." J And Ex-President Taft is of opinion 
that trades unions have failed to " condemn in any way, 
as they ought, the use of criminal methods to which 
in a lawless spirit their representatives at various times 

* Newton D. Baker: Law, Police, and Social Problems, Atlantic 
Monthly ; July 191 5, p. 17. 

t George B. Hugo: Conditions Fundamental to Industrial Peace, The 
Annals of the American Academy of Political and Social Science , Nov., 
1912, p. 22. 

% Louis D. Brandeis: Arbitration, The Mediator, Aug. 20, 1915, p. 11. 



ANARCHY II 

have seen fit to resort." * The employers on the Federal 
Industrial Relations Commission were satisfied from 
the testimony before them that one of the main reasons 
for the opposition of employers to unionism is "the 
resort on the part of unionists to violence in labor trou- 
bles, and to the fact that unionists condone such violence 
when committed in the alleged interest of labor." f 
The representatives of labor on the Commission reply 
to this criticism by way of "confession and avoidance" 
(as we lawyers say): 'The union, fighting for its right 
to live, is sometimes forced to tolerate acts that would 
not be countenanced if its entity were secure and its 
energies were not absorbed in fighting for existence." $ 
And the representatives of the public on the Commission 
say that the strikes accompanied by bloodshed, and 
attracting the attention of the country for the past 
quarter of a century "have been revolutions against 
industrial oppression, and not mere strikes for the im- 
provements of working conditions." And they list as 
such "revolutions" the railway strike of the late eighties, 
the Homestead strike, the bituminous coal strike of 
1897, the anthracite strikes of 1900 and 1903, the McKees 
Rocks strike in 1909, the Bethlehem strike in 1910, the 

* William Howard Taft in speech before the National Association of 
Manufacturers, May 26, 1915. 

t Report of Federal Commission on Industrial Relations (1915), 
p. 428. 

t Id, p. 280. 



12 LAW AND ORDER IN INDUSTRY 

strikes of the textile workers in Lawrence, Paterson and 
Little Falls, the strikes in the mining camps of Idaho, 
Colorado, West Virginia, Westmoreland Co., Pa., and 
Calumet, Mich., and also "the garment workers' strikes 
in New York and other cities." * 

Apparently, the representatives of the public upon the 
Federal Industrial Relations Commission believe that 
by calling a strike a "revolution" violence and law- 
breaking are excused. 

A recent writer finds in the lessons of the lynching 
of Leo Frank a striking analogy between that kind of 
law-breaking and the kind of law-breaking in the case 
of labor disputes. He finds in both an attitude towards 
the law symptomatic of "a besetting weakness of the 
American democracy," and that "back of the physical 
violence and lawlessness is an insidious and dangerous 
moral disorder." From eight years' observation and 
study, I am convinced that his conclusion is accurate: 
"The inability of American State governments in the 
case of labor disputes to protect either the strikers or 
the employers against organized disorder is notorious." f 
The Mayor of Cleveland has come very close to finding 
the real cause. He finds first of all that the state of the 
public mind during the violence is i confused and hesi- 

* Report of Federal Commission on Industrial Relations (1915), 
p. 89. 
t Georgia and the Nation, The New Republic, Sept. 4, 1915, p. 113. 



ANARCHY 13 

tant." The public sits by, " blaming one side or the 
other on such half information or interest as we may 
have, or wondering what ought to be done about it. . . . 
We do not like violence, but somehow this seems to us 
excusable violence, if it be not too violent." We have 
not yet come to realize that there is "a social loss with 
just so much human labor and wealth gone and so much 
less wealth produced," and that " labor loses not only 
the battles it ought to lose but many it ought to win." 
And he makes the further observation that "the result, 
no matter what it is, rests upon no higher sanction than 
force, and therefore lacks stability and will last only 
until one side or the other feels strong enough to renew 
the struggle." * 

The Mayor of Cleveland wrote in 191 5. What he 
said was said in 1910, is still said, and said over and over 
again. But where is the way out? Must there be vio- 
lence always accompanying labor disputes? Is it "revo- 
lution?" We met these questions face to face in 1910 
and met them over again in the years following. 

* Newton D. Baker: Law, Police and Social Problems, Atlantic 
Monthly, July, 1915, p. 17. 



CHAPTER II 



THE CLOSED SHOP 



The general strike was called without notice to the 
employers and without presentation of the customary 
list of grievances. All that the employers knew was that 
an order to strike had been issued, military fashion, 
to all of the factory workers, and that subsequently 
each employer had received in the mails a form of con- 
tract which, in legal and moral effect, meant to him the 
surrender of the control of his factory to the union. 
This contract contained the following remarkable clause: 

I. The said Firm hereby engages the Union to perform 
all the tailoring, operating, pressing, finishing, cutting 
and buttonhole making work required to be done by the 
Firm in its cloak and suit business, during the period 
commencing with the date of this agreement and ter- 
minating one year from date, and the Union agrees to 
perform said work in a good and workmanlike manner. 

The New York Times, commenting upon this contract, 
said: "The proposed agreement of the Cloakmakers' 
Union is a reminder of the padrone system." * The 
great number of people involved in the strike — it was 

* New York Times , July i6, 1910. 
14 



THE CLOSED SHOP 15 

said sixty thousand went out for ten weeks — its sudden- 
ness, gave it a dramatic flavor entitling it to a place on 
the first page of the newspapers. In our newsgathering 
nothing becomes really important in the nature of a 
labor dispute until there is a lockout or a strike, and 
the situation becomes a real newspaper "story" only 
when some heads are smashed or a murder is committed. 
But there was more involved in this particular strike 
than in many similar great strikes. Employer and 
worker in this industry were bound together by ties 
of race association and tradition not easily broken. 
There was real intelligence and sincerity on both sides 
and a fundamental basis of agreement, hidden, of course, 
by the noise and the turmoil upon the surface. What 
were the real differences? Very soon after the organiza- 
tion of the Employers' Protective Association each mem- 
ber pledged himself: 

That to the utmost of his ability, with the assistance of 
the Executive Committee, he will endeavor to adjust all 
shop grievances his employees may have. 

I can testify from personal knowledge that the leaders 
of the Association were as earnest and genuine in their 
desire to eliminate the real grievances of the workers 
in the industry as were the leaders of the Union. They 
resented the indiscriminate abuse that had been heaped 
upon the entire industry. They felt keenly the injustice 



16 LAW AND ORDER IN INDUSTRY 

of classing sheep with goats. And there was a very deep- 
seated determination that out of the strike should come 
something that would justify its cost. There was a 
definite and courageous determination to put the indus- 
try upon a higher plane and to make of the business at 
least something which would not make the employer 
shamefaced when admitting to his neighbors or to his 
children that he was a cloak manufacturer. In the 
private executive sessions of the employers' association 
I have heard the president say repeatedly that the asso- 
ciation stood for justice to the workers as well as to 
its own members, and that the efforts of its officers 
would be fruitless unless the industry were raised to a 
higher plane as the result of this crisis. 

If justice and a higher order of industry were the 
objective points for both workers' union and employers' 
association, why, then, a bitter conflict involving great 
loss and sacrifice? This was the rock-bottom question. 
A few men, disinterested and impartial, putting this 
question to both sides, learned that there was a basis 
for peace and order if both sides could be gotten to- 
gether. In August, 1910, however, the situation was 
this: a single issue precluded conference between the 
parties. At that time the union leaders genuinely be- 
lieved that no matter what agreement was arrived at 
between the employers and the union, unless the union 
controlled the supply of labor it would go to pieces and 



THE CLOSED SHOP 17 

the standards would break. Accordingly, the "closed 
shop" i. e., a shop in which none but union men should 
be employed, was to them a matter of vital principle; 
and so thoroughly convinced were they on this score 
that they made every other issue subordinate. In their 
publicity campaign they had made much of the un- 
sanitary conditions of the shops, the long hours, the 
low wages, the exacting of deposits, the tenement house 
labor, and the rest, but what they fought for more than 
anything else was " recognition of the union," which 
to them meant the "closed shop." To the employer, 
also, it was a matter of principle. He carried the re- 
sponsibility for running his enterprise. He knew he 
could not run it without freedom to select his employees. 
To him the " closed shop" meant abdication. It spelt 
ruin. 

The two parties were kept from each other by this 
apparently impassable barrier. In August, 1910, it 
seemed impossible to bring them nearer together. To 
Mr. Louis D. Brandeis is due entirely the credit of cut- 
ting this Gordian knot. Through the influence of friends 
of the union, he was called in to advise them. He ad- 
vised them to waive the demand for the closed shop and 
to present in writing to the manufacturers their griev- 
ances and to ask for a conference (having first learned 
through diplomatic sources that once the barrier was 
removed such a conference was practicable). Mr. 



18 LAW AND ORDER IN INDUSTRY 

Brandeis secured in the early hours of a midnight session 
with the executive officers of the Union authority to 
assure me, on behalf of the manufacturers, that the 
issue of the closed shop was eliminated. In his letter to 
me he wrote: "All of these officers understand fully 
that under this proposal the closed shop is not a subject 
which can be discussed at the conference." It was a 
great pleasure to join with Mr. London, the counsel 
for the Union, a few days later in inviting Mr. Brandeis 
to preside over the conference which followed. It lasted 
for five days. The grievances presented by the Union's 
representatives were briefly the following: 

Low wages. 

Unreasonable night work. 

Work in tenement houses. 

Disregarding of holidays and Sundays. 

Sub-contracting. 

Discrimination against union men. 

Irregular payment of wages. 

Extracting of security. 

Charging for material and electricity. 

Blacklisting of active union men. 
At first both sides approached each other with a very 
marked feeling of distrust. Gradually a better attitude 
of reasonableness prevailed. Step by step the minds 
of the parties were brought together. The liberal atti- 
tude of the leaders on the manufacturers' side, which 



THE CLOSED SHOP 19 

was only known to those who were in their confidence, 
now came out into the open. Indeed, such criticism of 
their work as came in later days was based upon the 
score that in August, 1910, they had been too ready to 
agree. 

On the fifth day of the conference, when practically 
all other matters had been disposed of, we were startled 
to hear the union representatives bring the closed shop 
up again for discussion. Mr. Brandeis very properly 
said: 

I should rule that the subject of the closed shop could 
not be discussed at all, except with the absolute consent 
of everyone who has entered here into the conference, 
because it was expressly understood, and I gave my 
assurance upon my own understanding of the written 
document which I received, that that was a subject which 
could not be brought up, and we proceeded wholly on 
that.* 

Notwithstanding all that had been accomplished up 
to this point, and despite the authorized assurance given 
to the manufacturers by Mr. Brandeis, the barrier again 
arose, huge and ominous, between the parties. It was 
here that in the effort to bring them together, Mr. Brand- 
eis suggested what afterwards came to be known as 
the " Preferential Union Shop." I must confess that 
I did not agree with Mr. Brandeis as to its utility. Never- 

* Minutes of Conference, July 20, 1910. 



20 LAW AND ORDER IN INDUSTRY 

theless, I recommended to the officers of the association 
that Mr. Brandeis and I discuss fully and frankly be- 
fore the Executive Board the feasibility of his recom- 
mendation. Mr. Brandeis argued one way. I argued 
another, as two lawyers will, each for his own convic- 
tion. Mr. Brandeis won my clients over. On the ist of 
August, 1 910, 1 was authorized to submit to Mr. London 
and to Mr. Brandeis the following letter: 

Dear Mr. London — Our conference this morning is 
fraught with such grave consequences that I believe such 
matters as I have to submit should be reduced to writing. 

I am prepared to join with you in recommending to 
our respective organizations the following as their joint 
understanding of the relations between the two, to be 
agreed upon: 

The conference has developed that the grievances 
complained of by the Union can be adjusted. Practically 
every subject has been agreed upon, save that of wages 
and the year-round Saturday half-holiday (instead of 
during the four summer months), both of which matters 
the manufacturers are willing to leave to arbitration. 
A Joint Board of Sanitary Control, composed of repre- 
sentatives of the Association and the Union and the 
public, will be formed, whose business it will be to estab- 
lish standards of sanitary conditions, to investigate as 
to the observance of these conditions, and both parties 
to the conference agree to exercise their powers to the 
fullest to enforce these standards. 

The manufacturers realize that to establish a standard 
of sanitary conditions, and standards of wages and 
hours throughout the industry it is important that there 



THE CLOSED SHOP 21 

should be complete cooperation between their Associa- 
tion and the Union. They are, therefore, ready to 
strengthen the Union, if it be but well organized and 
wisely led. If a complete agreement be now reached 
upon these difficult and delicate matters it will at once 
establish confidence between the leaders of both sides. 

The manufacturers cannot, of course, surrender the 
control and management of their factories to the Union. 
In agreeing to this declaration, the Union indicates that 
it assents. The manufacturers cannot coerce any one 
into joining the Union; to this the Union assents. The 
manufacturers cannot supervise the Union's business. 
The Union does not ask that they should. But the 
manufacturers can let it be known that they are in 
sympathy with the Union, and that as between a Union 
man and a non-union man of equal ability to do the job, 
they will employ the Union man. They cannot ask each 
man seeking a job to show his Union card, nor agree to 
collect the Union dues. On the other hand, they can and 
will (if this declaration be accepted) announce to all of 
their employees that they believe in the Union and that 
all who desire its benefits should share in its burdens. 

In signing this declaration, the Union does not seek the 
"closed shop" as it is understood by the manufacturers. 
They seek the " union shop" by which they mean, a shop 
where the majority of the men employed are Union men, 
and where the employer is known to be in sympathy 
with the Union. It is not intended that the employer 
shall not be free to pick and choose his workers. But it 
is intended that if in bad faith, he discriminates against 
Union men or fails honestly to give preference to Union 
men, then he is not conducting a "Union shop." It is 
done experimentally, for it has never before been tried in 
this or any other industry. But the manufacturers be- 



22 LAW AND ORDER IN INDUSTRY 

lieve modern conditions justify recognition of a well 
organized and disciplined union to this extent and that 
with good faith and wise leadership on both sides, 
cooperation between the two organizations can bring 
the industry to a higher position than it occupies even 
at present. 

On the other hand, the Union recognizes that it cannot 
hope to accomplish this great social result unless it helps 
to drive out of the industry the sweatshop "boss," the 
tenement house worker, and the unscrupulous manufac- 
turer. 

A joint board of arbitration will be established, upon 
which representatives of the public will be present. No 
future strikes or lockouts will take place until grievances 
are first submitted to arbitration. In the saving of the 
great waste thus eliminated both parties expect to gain 
much. 

I am aware in submitting this proposed agreement, it is 
fraught with great danger and that if accepted by my 
people, it goes "the limit." 

On the other hand I see nothing more that can be 
asked except the "closed shop" which, as you know, was 
eliminated before we went into conference. 

Please be good enough to give me your answer in 
writing by two o'clock today. 

On the same day Mr. Brandeis sent me the following 
letter: 

Dear Sir — Before submitting your letter of this 
day to Mr. London, after conferring with both you and 
Mr. London, I suggest that you modify the proposed 
declaration in the following respect: 



THE CLOSED SHOP 23 

First. Let the clause in the last paragraph on the first 
page, beginning with "but the manufacturers/ ' read: 
"But the manufacturers can and will declare in appro- 
priate terms their sympathy with the Union, their desire 
to aid and strengthen the Union, and their agreement 
that as between union men and non-union men of equal 
ability to do the job, they will employ the Union men." 

Second. Add to the second line of the second page: 
"And that the preference will be given to Union men." 

Third. Insert after the above: "The Union pledges 
itself to accept into its membership every applicant of 
good character on equal terms and keep its initiation 
fees and dues at a reasonable rate." 

Fourth. Substitute for the second sentence of the first 
paragraph beginning on page 2 "the majority, etc.," 
the following: "They seek the Union shop, by which 
means they mean a shop in which Union standards pre- 
vail and the union ma,n is entitled to the preference." 

With these changes I am prepared to join with you in 
recommending the acceptance of the proposal. 

At the end I wrote "I accept your modifications." 

But this modus vivendi proved to be unacceptable to 
the union. There can be no question as to the sincerity 
of the leaders of the union. They were all, personally, 
brave, self-sacrificing men. But unfortunately they 
had created a Frankenstein. To have gone back and 
told the mass of the working people that they had won 
everything but the closed shop seemed to them im- 
possible. In consequence, the conferences broke up. 
The strike was renewed. More heads were smashed, 



24 LAW AND ORDER IN INDUSTRY 

more shops stopped work, more shops opened in other 
cities. Employers signed individual agreements ac- 
cepting the closed shop, secretly vowing that they would 
repudiate them immediately after hostilities were over. 
Those employers who fought the closed shop as matter 
of principle continued their fight and lost large sums of 
money, their less scrupulous competitors manufacturing 
garments under strictly closed shop agreements. This 
was the situation which again, as counsel for the em- 
ployers, I presented to the Supreme Court. Upon the 
evidence presented, including the record of the con- 
ference, the Court said: 

The primary purpose of this strike is not to better the 
condition of the workman but it is to deprive other men 
of the opportunity to exercise their right to work and to 
drive them from an industry in which, by labor, they 
may have acquired skill and which they have a right to 
pursue to gain a livelihood without being subjected to 
the doing of things which may be disagreeable or re- 
pugnant. That this is the motive which animates the 
combination of defendants is clear from the correspond- 
ence, the negotiations, the conferences, and the acts and 
conduct disclosed in papers before the court.* 

The judge who wrote this opinion was made the sub- 
ject of ridicule and abuse, and, of course, the lawyer 
for the association came in for his share. But this deci- 

* Schwarcz v. International Ladies' Garment Workers' Union, 68 
Misc. (N. Y.) 528; (534). 



THE CLOSED SHOP 2$ 

sion sounded the death knell of the closed shop as part 
of the propaganda of the garment workers of New York. 
When later the preferential union shop was accepted 
in lieu of the closed shop, it was followed by similar 
protocols in other industries in New York, Philadelphia 
and Chicago,* and was made the basis of strikes in the 
men's clothing industry in New York City, Chicago, 
Rochester, and Baltimore. I think it may be said with 
accuracy that, so far as the Hebrew trades of New York 
are concerned, the propaganda of the closed shop as a 
means for improving the condition of the workers has 
been abandoned. As this chapter is being written, it 
is reported that the Ladies' Garment Workers have 
accepted an agreement in Chicago with the cloak man- 
ufacturers' association on the basis of the preferential 
union shop instead of the closed shop. In January, 191 2, 
after a year and a quarter's experience, the editor of 
The Ladies 7 Garment Worker wrote concerning the closed 
shop: 

... we believe that members prefer working at a 
preferential shop and earning good wages than working 
at a strictly closed shop, under the full control of the 

* See Bulletins 144 and 145, Bureau of Labor Statistics, Department 
of Labor. 

See agreement, Hart, Schaffner & Marx, Chicago. 

See George Creel: A Way to Industrial Peace, The Century -, July, 
1915. 

See also proposed agreements, Amalgamated Clothing Workers of 
America. 



26 LAW AND ORDER IN INDUSTRY 

union, and go away with poor pay envelopes. After all, 
the union shop is only a means to increase the em- 
ployees' earnings and not an end in itself. 

In the hearings before the Industrial Relations Com- 
mission at Washington in the winter of 1914, the former 
head of Typographical Union No. 6 stated that if the 
national master printers' organization, with which the 
typographers had been at war for many years, was will- 
ing now to sign an agreement on the preferential union 
shop basis, similar to the one then existing in the cloak 
industry, he believed the union would cheerfully accept 
it. The following resolution adopted by all the members 
of the Federal Industrial Relations Commission is signif- 
icant: 

Whereas, The Commission finds that the terms 
open shop and closed shop have each a double meaning, 
and should never be used without telling which meaning 
is intended, the double meaning consisting in that they 
may mean either union or non-union; Therefore, for the 
purposes of this report, 

Be it Resolved, That the Commission on Industrial 
Relations will not use the terms "open shop" and 
"closed shop," but in lieu thereof will use "union shop" 
and "non-union shop." 

The union shop is a shop where the wages, the hours of 
labor, and the general conditions of employment are 
fixed by a joint agreement between the employer and the 
trade union. 

The non-union shop is one where no joint agreement 






THE CLOSED SHOP 27 

exists, and where the wages, the hours of labor, and the 
general conditions of employment are fixed by the 
employer without cooperation with any trade union. 
Wherever the terms are used in this report, they bear 
the interpretation as set forth above.* 

The rejection of the proposal made on August first 
was a mistake. In industrial matters, as in political 
matters, mistakes have a way of correcting themselves, 
but the price paid for the correction is often a very 
high one. Experience is the most expensive way of 
correcting such errors. For four weeks after the first of 
August the strike continued. The newspapers were 
full of accounts of disorder and of accounts of the hard- 
ships of the workers. Finally the pressure upon the 
charities of the City of New York became so great that 
leading citizens intervened, and through the good offices 
of Mr. Louis Marshall, the distinguished New York 
lawyer, Mr. London and I were brought together, with 
the approval of our clients, for conference. The mistake 
was corrected. The proposal of August 1, 1910, became 
the Protocol of Peace of September 2, 1910. This docu- 
ment was the governing instrument for the industry 
until May 17, 191 5. It is printed in full as Appendix A. 

* Report of Federal Commission on Industrial Relations (1915), 
P. 253. 



CHAPTER III 

THE POLICY OF THE PROTOCOL 

When a strike is settled, it means that the parties 
have come to an understanding. As in the case of all 
other agreements, it is usually reduced to writing, if 
for no other reason than to preserve ready evidence of 
the terms. When such agreements are made between 
a group of employers and a group of workers, the process 
is called "collective bargaining." Such collective agree- 
ments are quite prevalent in Great Britain. In the 
" Report on Collective Agreements between Employers 
and Workpeople in the United Kingdom" published 
in 1910, issued by the Board of Trade (Labor Depart- 
ment), Sir George Askwith reports that there were 
then in existence one thousand six hundred and ninety- 
six such agreements involving two million four hundred 
thousand people. In the introduction, Sir George Ask- 
with says: 

The wide prevalence of these arrangements in our most 
important industries must have an important influence 
on industrial enterprise, for when the level of wages, the 
length of the working day, and other probable conditions 
of employment are regulated, for specified periods of 

28 






THE POLICY OF THE PROTOCOL 29 

greater or less duration, by clearly defined agreements, 
the employers concerned must be enabled to calculate 
with precision that part of the cost to production which 
will be represented by labour; however, when these 
agreements bind the whole or a very large proportion of 
the firms engaged in a given trade, the danger of under- 
cutting by rivals who find it possible to obtain labour at a 
lower price is materially reduced. 

In the more recent report of the British Industrial 
Council on its " Enquiry into Industrial Agreements/ ' 
dated 1913, the Council says: 

18. The value of efficient organization on the part of 
employers and work-people as a means of securing the 
due fulfilment of industrial agreements is very clearly 
demonstrated by the experience of the different trades 
of the country. 

29. The desirability of maintaining the principle of 
collective bargaining — which has become so important a 
constituent in the industrial life of this country — cannot 
be called into question, and we regard it as axiomatic 
that nothing should be done that would lead to the 
abandonment of a method of adjusting the relationships 
between employers and work-people which has proved so 
mutually advantageous throughout most of the trades 
of the country. 

This result has been brought about in Great Britain 
through encouragement by the Board of Trade of the 
making of trade agreements, and through the frequent 
application of the Conciliation Act of 1896, now known 



30 LAW AND ORDER IN INDUSTRY 

as the "Trade Disputes Act" (59-60 Vict., Chap. 30, 
7 th of August, 1896). 

The agreement between the International Ladies' 
Garment Workers Union and The Cloak, Suit and Skirt 
Manufacturers Protective Association was a " collective 
agreement." It established a minimum scale of wages 
for week workers, maximum hours, number of holidays 
to be observed, limitation of hours of overtime, pro- 
hibition of home work, requirement for electric instead 
of foot power, etc. In these various directions thus re- 
corded the workers made marked advances, as is indi- 
cated in the following recent statement by the chief 
executive officer of the union: 

The protocol afforded positive gains. Even the seem- 
ingly petty provisions requiring the abolishment of foot 
power, and the introduction of electric power for operat- 
ing machines, was a gain that could be felt in the very 
bone and marrow. The regulating of deposits for tools 
abolished another hardship. A cloakmaker suffering 
starvation for months, upon finding employment, had 
to hunt for sums of $3.00 and $5.00 to deposit with the 
employer for the tools he was to use. From pressers 
a much larger security was exacted. In practice this 
amounted to a payment for the privilege of securing the 
job; and the difficulty of having these sums refunded 
upon their leaving the firm's employ, was a hardship 
just as oppressive. The protocol fixed $1.00 as the sum of 
this deposit, for which the employer was required to give 
a formal receipt, and introduced similar improvements. 
These reforms cannot be overestimated. They have 



THE POLICY OF THE PROTOCOL 31 

modernized the trade. Add the fifty-hour week, the 
preferential shop and the Board of Sanitary Control and 
it must be granted that the reforms were of profound 
significance.* 

A few illustrations of the betterment of individual 
workers' conditions are taken as examples, from Bulletin 
147, Bureau of Labor Statistics, Department of Labor.f 

* B. Schlesinger: Our Recent Struggle and Its Results, The Ladies' 
Garment Worker, September, 191 5, p. 15. 

t "After the settlement of the strike, in September, practically every in- 
dividual in the 200 studied was earning more than before the strike. . . . 

"Presser No. 3. — Born in Russia, in 1887; . . . about one year after 
arrival in the United States, at 21 years of age, entered the industry, 
learned the trade in the shop, beginning as a piece presser; worked two 
weeks for nothing as a learner, then 3 weeks at $3, then a few weeks at 
$3.50, then a few months at $5, and by the end of his first year had 
worked up to $8 as an upper presser on skirts; in 19 10 he was making 
$10, which was increased to $16 after the strike; during 191 1 he was 
out of work, except about 3 months while he was with a circus; during 
191 2 he worked as a reefer upper presser at $14, and in 1913 as a jacket 
under presser at $18. . . . 

"Presser No. 4. — Born in Russia, in 1878; . . . came to the United 
States in 1905; . . . after about 2 years in New York, entered the in- 
dustry at 29 years of age, learning the trade in the shop; began as an 
under presser, working for 5 weeks at $4, and then for 2 years at $7; in 
1910 he made $9 as an under presser, but after the strike made $15 as 
piece presser; since 191 1, under presser at $18. . . . 

"Presser No. 5. — Born in Roumania, in 1861; . . . came to United 
States in 1902 and entered the industry at once, at 41 years of age; be- 
gan as piece presser, working 2 weeks for nothing, then for 3 months at 
$3 per week, then at $7; for 2 years worked at $9; by 19 10 was making 
$12 and $13 per week, and since the strike $19 as skirt upper presser; 
learned the trade in the shop from other workers. . . . 

"Presser No. 6. — Born in Russia, in 1874; . . . Came to United States 
in 1904, where he was a peddler with a pushcart for about a year and a 
half; after about 2 years in the United States, at 32 years of age, began 



32 LAW AND ORDER IN INDUSTRY 

Quite apart, however, from immediate material gains 
guaranteed by these specific provisions of the Protocol, 
the document contained general provisions of much 

as skirt under presser, learning the trade in the shop; worked 2 weeks 
for $5 per week, then several months at $8, then a year at $12, and by 
19 10 was making $16, and by 19 12 became a jacket upper presser at 
$21. . . . 

"Cutter No. 1. — Born in Italy in 1890; . . . came to United States 
in 1900 and 6 years later, at 16 years of age, entered the industry, learn- 
ing the trade in the shop; began as a learner, making $5 to $8 the first 
year; worked one year as a canvas cutter at $10, then 2 years as a cloth 
cutter at $14 and $16; at the time of the strike in 19 10 he went into 
business for himself, manufacturing willow plumes; in 191 2 returned to 
the industry as a cloth cutter at $25. . . . 

"Cutter No. 3. — Born in New York, N. Y., in 1893; ... in 1907 
went to work as an errand boy at $4 per week; in 1908 was collector for 
a cotton house at $7, and in 1909 shipping clerk in a cloak house at $7; 
in 1910, at 17 years of age, he entered this occupation as a learner at the 
cutting table, starting at $4 and working up to $11 in 6 months; at the 
time of the strike in 19 10 he went to Detroit, where he secured a job as 
a mechanic in an automobile factory at $15; in 191 1 he returned to New 
York, making $25 as a cloth cutter since that date. . . . 

"Cutter No. 4. — Born in United States in 1891; ... in 1904 went to 
work as a stock clerk at $6, the next year making $8; the following year 
was office boy and apprentice draftsman in an architect's office at $10, 
and then for 2 or 3 years was shipping clerk, stock clerk, and factory 
bookkeeper at $12; after the strike in 19 10 he entered this industry, at 
19 years of age, as a canvas cutter at $12; during the past 2 years he has 
been a cloth cutter at $25; learned the trade in the shop, beginning as 
canvas cutter. . . . 

"Cutter No. 6. — Born in Russia in 1891; . . . came to United States 
in 1902 and worked in leather trade 4 years; in 1906, at 15 years of age, 
entered this industry as canvas cutter; learned the trade in the shop, 
paying $25 for the privilege and in addition working 4 weeks without pay; 
after that received $6 per week, and in 2 years was making $14 as trim- 
ming cutter; since the strike in 19 10 has been making $20 as trimming 
cutter. . . . 

"Cutter No. 8. — Born in Italy in 1874; . . . came to United States 



THE POLICY OF THE PROTOCOL 33 

greater import in their ultimate consequences. These 
were the provisions for the " Preferential Union Shop," 
the Joint Board of Sanitary Control, the permanent 
Board of Arbitration, the Board of Grievances, and the 
prohibition of strikes or lockouts during the life of the 
agreement. Each one of these phases of the agreement 
deserves separate treatment; but underlying all of them 
was a policy quite definite and concrete in the minds of 
those who drew up the document. It is this general 
policy and the institutions created to carry it forward, 
now tested by five years of actual experience, which 
warrant study and reflection. 

The experiences prior to and during 1910 have been 
reviewed not with any idea of reminding either side of 
its mistakes, but to put light side by side with shadow. 
Comparison between the ideal for which we are striving 
and the gains actually made has its legitimate encourage- 
in 1877; went to work in 1886 pulling bastings at $1.25 to $2 per week; 
beginning in 1889 was f° r several years an operator on men's clothing 
at $3 to $9, and then jacket tailor at $10; then for 3 years a contractor 
in men's clothing line; in 1900, at 26 years of age, he entered this occupa- 
tion, learning the trade by taking private lessons from a cutter in the 
latter's home; made $20 as cutter on men's clothing and $22 on cloaks 
and suits up to 1910; since the strike in 1910 has been making $25 as 
cloth cutter on cloaks and suits. . . . 

"Cutter No. 10. — Born in Austrian Poland in 1892; ... in 1909 came 
to United States and entered this industry at once, at 17 years of age, 
learning the trade in the shop as a helper trimming cutter; began at $3 
and was making $8 in 19 10 as assistant trimming cutter; since the strike 
has been making $18 as trimming cutter. . . ." (Pp. 139, 140, 142, 143, 
144.) 



34 LAW AND ORDER IN INDUSTRY 

ment; but such comparisons, to be of real value, must 
mark the difference between two points of progress. 

The Protocol has been called "a lawyer-made instru- 
ment.' ' This is true. It was but natural that the im- 
plicit policy underlying its phrasing should be shaped 
by such experience and learning of the world's efforts 
to secure justice by law as the framers could bring to 
their task. A rather warm admirer of its provisions 
wrote recently that it was of a kind with our Federal 
Constitution. Of course, he overestimated its value. 
But it is true that it was the first attempt to introduce a 
Constitution — a rule of law and order — into the industry. 
Now, no one knows better than the lawyer that, without 
power to enforce law, law is nugatory. Criminal statutes 
without penalty have no value. Some of our best citi- 
zens are only observant of the law because they fear the 
consequences. No Hague Tribunal can make peace 
certain without some police power to enforce its deci- 
sions. The judgment of the United States Supreme 
Court would be of no value, if there were no United 
States marshal with the power of the Federal Govern- 
ment back of him to execute the court's warrant. In- 
deed, the document authorizing the marshal to act is 
called a "writ of execution." By the same experience, 
no one knows better than the lawyer the futility of force 
as a means of making law or determining the justice 
of any cause. It seems incredible that there were times 



THE POLICY OF THE PROTOCOL 35 

when grave moral issues, grave legal questions were 
determined only by trial by battle, the ordeal or the duel. 
It was not until 18 19 that trial by wager or battle was 
abolished in England. As late as 18 17, one Abraham 
Thornton, acquitted of the charge of murder, threw 
down the gauntlet and offered, on an " appeal of murder," 
to test the validity of the charge by battle. The com- 
plaining relative of the deceased, refusing to take the 
challenge, let the appeal drop, and this was the last 
case of trial by wager of battle. Although the Romans 
had a system of trials, trial by jury as it is now known 
did not come into general practice until the latter half 
of the 12th century, under Henry II.* The ordeal was 
abolished in 1215.! If ever we are impatient with the 
results of civilization's efforts to adjust international 
matters by the processes of reason, let us recall that 
we are scarcely a century away from the time when the 
determination of private disputes by the rule of the 
strong arm was finally abolished, and we are but seven 
centuries away from the introduction into English juris- 
prudence of the system of trying facts before juries. 
And let us not forget that even at the present moment 
we are witnessing the effort of a single nation to demon- 
strate that power, applied efficiently, is the only method 
for making moral progress. If we are so backward in 

* Pollock and Maitland: "History of English Law," Vol. I., p. 144. 
tW.,VoLII,p.599. 



36 LAW AND ORDER IN INDUSTRY 

international relations, is it any wonder that the flame 
of faith in the juridical method of administering justice 
should flicker? 

If this, then, was "a lawyer-made document," we 
should expect to find in it provisions for a permanent 
tribunal of some sort that should be constituted as 
nearly as practicable the supreme court of the industry; 
and provisions likewise inhibiting resort to war, i. e., 
strikes and lockouts, so long as such a tribunal existed. 
The foundation for such a tribunal was first suggested 
by the union. In its communication looking to the 
conference of August, 1910, the union stated that to 
remedy its grievances it was, in its opinion, " neces- 
sary ... to establish a permanent board of arbitration 
which is to settle grievances, the union and employers 
to be equally represented on the board of arbitra- 
tion. . . ." One of the striking features of the Protocol 
is the complete absence of time limit. It has been fre- 
quently referred to as a perpetual agreement; but this 
is a misuse of terms; in fact, it could be terminated in- 
stanter by either party. So long as the parties had 
sufficient confidence in each other and in the Board of 
Arbitration to keep the Protocol alive, it would live. 
And the Board was selected before any controversy 
had arisen. The value of a Board of Arbitration selected 
in advance of any controversy has long been under- 
stood by students of the larger problem of arbitration. 



THE POLICY OF THE PROTOCOL 37 

James Brown Scott, in the introduction to the Proceed- 
ings of the 191 2 Conference of the American Society 
for the Judicial Settlement of International Disputes, 
thus indicates the principal advantages of a truly per- 
manent court composed of judges (pp. 9-10): 

Parties in controversy are not in the frame of mind to 
create a tribunal, whereas, if the tribunal existed, they 
might be willing to submit the case to its decision. 
Those who have had experience in such matters know 
that it is hard to agree upon judges, yet that nations are 
unwilling to submit their disputes to a tribunal whose 
constitution is unknown. Delays thus occur, whereas 
the case should be decided promptly and removed from 
the field of international controversy. Again, judges 
chosen for a particular purpose are supposed to be 
friendly to the appointing powers, otherwise they would 
not have been selected; and international awards often 
betray traces of compromise. Again, a temporary 
tribunal does not bind another different temporary 
tribunal any more than it is bound by its predecessor, if 
it can be considered to have a predecessor. The decision 
is not likely to be a precedent, as would inevitably be 
the case if it were decided by a permanent tribunal com- 
posed of the same judges passing upon a like question. 

It is common knowledge that international law is not 
developed by the awards of temporary tribunals. The 
advantage, in fact the need, of an authoritative interpre- 
tation of international treaties or agreements requires 
neither elaborate statement nor argument, and it is 
obvious that the decisions of a permanent international 
court constituted by the parties to such treaties or agree- 
ments would bind all of the contracting parties forming 



38 LAW AND ORDER IN INDUSTRY 

the judicial union, just as the decisions of the Supreme 
Court of the United States bind the members of the 
American Union. Finally, the temporary tribunal is 
costly in comparison with a permanent court. 

In connection with the negotiations for a permanent 
treaty of arbitration between the United States and 
Great Britain, Lord Salisbury, writing to Sir Julian 
Pauncefote in March, 1896, in reference to the class of 
cases in which differences might arise involving issues 
which concerned the State itself, considered as a whole, 
said: 

If the matter in controversy is important, so that 
defeat is a serious blow to the credit or the power of the 
litigant who is worsted, that interest becomes a more or 
less keen partisanship. According to their sympathies, 
men wish for the victory of one side or another. 

Under the "preferential union shop" arrangement, 
the manufacturers undertook to strengthen the union. 
Their purpose was clearly understood by both parties. 
If there was to be peace and order in the industry by 
restraint of the passions of men and resort to reason 
instead of force, the strong power of the workers' own 
organization must be welded into some sort of a police 
department for the industry, and, likewise, the em- 
ployers' organization must be another arm of such a 
police department. 



THE POLICY OF THE PROTOCOL 39 

For all of the advances granted to the workers by this 
agreement, the employers received but two substantial 
considerations in exchange — the promise of a rational 
and peaceable method for securing adjustment of future 
controversies and the equal enforcement of standards 
and wage conditions throughout the entire industry. 
In the conference over which Mr. Brandeis presided 
on the 29th of July, 1910, 1 said, on behalf of the manu- 
facturers: 

Now, one of the things that we welcome, in this situa- 
tion, is the possibility of establishing standard rates of 
compensation throughout the industry. We want, if we 
are going to agree to pay your people a certain standard — 
we want to be sure that our competitor, Mr. Dyche, will 
not be able to get the work done for less than that; that is 
the difficulty. So long as this has been left, not as a 
matter of regulation, but as a matter of competition, 
there is nothing to prevent the worker from working 
for whatever he can get, and there is nothing to prevent 
the employer from cutting him down to the lowest 
terms, and we are driven of necessity to compete with 
the others who are paying the lowest wages, so that the 
result of it is the constant lowering of the wage instead of 
increasing it. We recognize that just as you must have 
recognized it before, and I want to say that in this con- 
nection of the wage standard we seek in the organization 
of your Union one of the strongest means by which to 
prevent the inexorable law of competition, reducing the 
standard of living in your industry and we welcome your 
Union for that, if not for a great many other things. All 



40 LAW AND ORDER IN INDUSTRY 

we want though is some reasonable expectation that the 
Union is going to live up to its part and to this promise 
to us.* 

This was the ground-work of the expectation of busi- 
ness men, looking forward to a better organization of 
industry and ready to join in an effort to secure it. Ac- 
cordingly, they agreed to strengthen the union and, in 
cooperation with it, to bring order out of chaos. If such 
a result could be accomplished, the social and the business 
aims of the industry could be harmonized. Of necessity, 
the problem was one requiring for its solution the help 
of both parties. There would be conflict of interest, 
but in spite of the conflict there could be agreement be- 
tween the manufacturer of broad outlook and the labor 
leader who sought improvement in the working condi- 
tions in the industry. Both had a common task. Cloak 
manufacturers are no better and no worse than lawyers. 
If the Bar Association had no discipline committee, the 
roster of convicted and disbarred lawyers would not 
be so long. It is the associated effort to raise the pro- 
fession that makes for cleaner conduct generally. It 
was the conception of the industry, as in a measure, a 
profession in which mere gain or livelihood was not to 
be regarded as the sole object of activity, that gave 
the breath of life to the Protocol and inspired the leaders. 
This spirit, this ideal, no lawyer could give to his clients. 
* Minutes of Conference, July 29, 1910. 



THE POLICY OF THE PROTOCOL 41 

He could bring method to carry into actual practice 
and show the way, but he could not furnish the vision 
or the faith. And the natural method was that of parlia- 
ment and the law courts — orderly debate, study, con- 
troversy — but decision by a process of reasoning, not 
of coercion by one power against another. The men 
who dreamed of such a program knew well enough that 
the millennium would still be far off. And they knew 
that the introduction of the parliamentary method into 
government, like the introduction of the juridical method 
for the settlement of private disputes, would not bring 
about complete and uniform justice. They knew that 
so long as laws must be made and administered by human 
beings, with the defects of temper and of intellect of 
human beings, error would be sure to arise. The faith 
of the parliamentarian and the lawyer that, in the long 
run, justice is more approximately secured and progress 
made with less waste by the parliamentary and juridical 
method, is based upon the solid foundation of human 
experience. 

The Board of Grievances was created to take care of 
ordinary shop difficulties that would not require the 
services of the higher tribunal. Its procedure was neb- 
ulous. The protocol contained the barest outlines of 
its functions. The lawyers who drew the protocol knew 
the evils of the law's delays and the consequences of 
complexity of procedure. They sought to devise the 



42 LAW AND ORDER IN INDUSTRY 

simplest method possible for ascertaining truth in a 
shop or factory controversy. 

This, then, was the policy of the Protocol: Assuming 
controversy and conflict between parties having diver- 
gent interests as inevitable, that such controversy and 
conflict should be put upon the plane of procedure of 
civilized and orderly men; that justice, however approxi- 
mate, should be arrived at by the rational method, and 
that law and order should take the place of anarchy. 









CHAPTER IV 

THE JOINT BOARD OF SANITARY CONTROL 

In 1 910 the factories of the cloak and suit manufac- 
turers were distributed in various parts of the city. Some 
were on the lower East Side, some were in Greene, 
Wooster and Mercer Streets. But the larger manufac- 
turers were in loft buildings in what was then known 
as the "uptown" district. This district embraced Fifth 
Avenue and the adjacent side-streets as far north as 
Twenty-seventh and Twenty-eighth Streets. The better 
sanitary conditions were to be found in these larger loft 
buildings, where some of the leading manufacturers 
had already established modern lunch and rest rooms 
for employees. That there were unsanitary conditions 
in many shops both in the loft and East Side districts 
could not be disputed. In the strike of 1910 much 
publicity was given to both the good and the bad sani- 
tary conditions in the industry. Newspaper men and 
women visited the factories and reported upon the very 
bad conditions in some parts of the city and the very 
good conditions in others. It was but natural that the 
representatives of the union should dwell upon the bad 
conditions and the representatives of the association 

43 



44 LAW AND ORDER IN INDUSTRY 

should dwell upon the good conditions. When, how- 
ever, the list of grievances to be discussed at the con- 
ference to be held in July, 1910, was submitted by the 
union, no mention was made of the sanitary conditions 
in the industry. 

As counsel for the manufacturers, I thought it weak- 
ened their position to be obliged to face this constant 
criticism. But quite apart from this line of reasoning, 
it seemed to me that the industry itself ought to assume 
the responsibility for its own sanitary conditions, as 
the Bar assumes responsibility for the ethical conduct 
of its members. State and local inspection had broken 
down. Only by the cooperation of both the employers 
and the workers could any marked improvement be 
made. I believed that both sides should bring the in- 
fluence of the public to bear upon the problem and to 
solve it in an intelligent way. The process of reasoning 
naturally led to the conception of a triangular board, 
made up on one side of representatives of employers, on 
the other of the workers, and on the third of the public, 
vesting in the board all the power that the union and the 
association could give, and concreting it with all of the 
power and influence that the public could bring. I pre- 
sented the matter to my clients and found that they were 
more than ready to authorize me to offer my suggestion to 
the union. The record shows that on the 29th of July, 
1910, the matter was presented in the following language: 



THE JOINT BOARD OF SANITARY CONTROL 45 

May I say this, that in the published discussion of this 
strike emphasis seems to have been laid upon the un- 
sanitary conditions in the industry, and the better class 
of manufacturers were very sensitive about that, because 
of the fact that they had been making earnest efforts 
to create sanitary conditions and had met considerable 
difficulties on the part of their employees. Now, un- 
doubtedly in some of the shops of the cloak manufac- 
turers unsanitary conditions exist, and we have learned 
since these contracts have been signed up that contracts 
have been signed with some manufacturers who, accord- 
ing to our standards, have unsanitary shops, and we 
were rather astonished when the statement of grievances 
came to us that the sanitary conditions were eliminated, 
as a grievance. In the statement of grievances there was 
nothing said about sanitary conditions. I was very glad, 
therefore, when Mr. London, in making up the topic, 
included that for discussion here. Now, we are very 
much concerned about this question, because we have 
some pride in our industry, and we know that it is ex- 
ceedingly difficult to observe sanitary conditions. I am 
frank to confess that I do not see that it will make very 
much progress here to go into the specific details of 
unsanitary conditions, and I will suggest to my learned 
brother that he take under advisement with his people 
the proposition, that both parties establish as the result of 
this conference a board of sanitary supervision, on which 
there shall be people representing the public who shall 
endeavor to establish a standard to which factories in 
this industry shall conform, and when that board of 
sanitary control makes its recommendations, we will 
legislate for our members on our side, so that no worker 
will work where these conditions do not exist, and no 
honorable cloak manufacturer will remain a member 






46 LAW AND ORDER IN INDUSTRY 

of our Association if he does not observe these con- 
ditions.* 

The same afternoon the proposition was accepted by 
the union and a general outline of the method is con- 
tained in the following statement then made with the 
full approval of my clients: 

We realize that the suggestion that I made requires a 
great deal of efficient work to carry it into effect. We 
are prepared, on our part, I may say that if the suggestion 
is adopted, to establish a corps of inspectors, paid in- 
spectors. If your organization cannot afford to pay the 
whole expense, we will bear the larger burden of it. We 
are perfectly willing that you shall bear half of the ex- 
pense, if you can do it out of your organization funds, but 
we want this general board of control to be so effective — 
to have reliable people, people whom your committee se- 
lects, whose business it will be to visit, not only the shops 
of our own members, but as far as possible, the shops of 
non-members of our association, and let their reports be 
the reports on which the General Board of Sanitary Super- 
vision will act. That is going to require efficient manage- 
ment; going to require efficient skill; going to require 
good inspection, and we expect to get out of it, by way of 
return, the knowledge on our part that no loose criticism 
can hereafter be made, — but it will have to be definite, 
and in addition to that, we will be able to make practical 
the pride that we have in our industry at the present 
time. Now, we do not pretend to be white-robed angels 
on our side; we do not pretend that every man in our 
association has reached the highest stage of human 

* Minutes of Conference, July 29, 1910. 



THE JOINT BOARD OF SANITARY CONTROL 47 

development, but we are going to do our level best to 
raise him to that standard if we can. We are going to do 
our level best to make the standard clear, and we are go- 
ing to do our best to make it enf orcible, and we want you 
to feel that all of your people are not white-robed angels; 
to see that yQu have your fair share of the job, and you 
must be willing to undertake it with us. We will join 
hands, and we will get out of this strike . . . something 
that will lift the entire standard of civilization in our 
city.* 

The provision of the Protocol as it was signed on the 
2d of September, 1910, contained the following: 

The parties hereby establish a Joint Board of Sanitary 
Control, to consist of seven members, composed of two 
nominees of the manufacturers, two nominees of the 
unions, and three who are to represent the public, the 
latter to be named by Meyer London, Esq., and Julius 
Henry Cohen, Esq., and, in the event of their inability 
to agree, by Louis Marshall, Esq. 

Said board is empowered to establish standards of 
sanitary conditions, to which the manufacturers and the 
unions shall be committed, and the manufacturers and 
the unions obligate themselves to maintain such stand- 
ards to the best of their ability and to the full extent of 
their power. 

The scheme thus vaguely outlined at the end of July, 
1910, became an actuality in September. The Board 
was formed with distinguished representatives of the 

* Minutes of Conference, July 29, 1910. 



48 LAW AND ORDER IN INDUSTRY 

public and the two representatives from each side. Ap- 
propriations were freely voted and a careful survey of 
the industry made. Such a survey has been regularly 
made every six months since that time. The gradual 
improvement in sanitary conditions is disclosed in the 
printed bulletins and reports of the Joint Board of 
Sanitary Control. The figures showing the gradual 
elimination of cellar shops, fire traps, pest holes and 
like conditions in the industry are most graphically 
displayed. The Board has had exhibits at the First 
and Second Expositions of Safety and Sanitation and 
has been awarded Gold Medals. It has had an exhibit 
at the exposition in San Francisco and has been awarded 
a Bronze Medal. No one has recognized its efficacy and 
appreciated its value to the community so well as the 
Commissioner of Health of the City of New York, who in 
July, 1 91 5, commenting upon the termination of the 
Protocol stated publicly: 

The effectiveness of its work (the Board of Sanitary 
Control) has been universally recognized and com- 
mended, and the program of the Joint Board is to-day the 
official program of the Department of Health for the sanitary 
regulation of industry generally. 

The need of sanitary industrial regulation is obvious. 
Regulation by compulsion, however, is not and never can 
be wholly satisfactory. There is safety in self-respect, 
and an industry which undertakes to maintain by its 
own efforts proper sanitary standards, not only protects 






THE JOINT BOARD OF SANITARY CONTROL 49 

itself but is an aid to society. For these reasons the 
Department of Health is endeavoring to arouse a livelier 
interest in and a better understanding of sanitary mat- 
ters in various industries. Our two strongest arguments 
are these: first, that sanitary standards are desirable; and 
second, that the maintenance of sanitary conditions is 
practicable through voluntary effort, in proof of which 
heretofore it has been necessary only to point to the 
actual record of the Joint Board of Sanitary Control. 
The discontinuance of that body is a grave loss to the public- 
health movement* 

Miss Lillian D. Wald, Chairman of the Executive 
Committee of the Joint Board of Sanitary Control, writ- 
ing in her book, " The House on Henry Street," says: 

(P. 283). Since those days (strike of 1910) cloaks 
are no longer made in New York tenement homes, and 
the once unhappy, sweated workers, united w T ith other 
garment-makers, have been lifted into eminence because 
of the unusual character of their organization. 

(Pp. 284-285). High sanitary standards and a 
living wage, with reasonable hours of employment, were 
assured so long as both parties submitted to the terms 
of the protocol. Whatever changes in the administra- 
tion of the trade agreement may be made, the protocol 
has established certain principles invaluable for the 
present and for future negotiations. The world seemed 
to have moved since we shuddered over the long hours 
and the germ-exposed garments in the tenements. 

* Letter, S. S. Goldwater, M. D., to The New Republic, appearing 
under heading "Protocol Aided Public Health," issue of July 24, 1915, 
P- 314. 



SO LAW AND ORDER IN INDUSTRY 

The success of the Board as an institution must be 
regarded as unqualified. The verdict is unanimous. 
When in May, 191 5, the employers found it necessary, 
in their judgment, to terminate the Protocol, they felt, 
nevertheless, that the work of the Board of Sanitary 
Control should be continued. Though the termination 
of the Protocol left no legal basis for the institution, 
yet on the nth day of June, 1915, the employers wrote 
the Chairman as follows: 

New York, June nth, 1915. 
Hon. William J. Schieffelin, 
31 Union Square, East, 
New York City. 

Dear Sir: — 

The very excellent work done for the cloak industry 
during the past five years by the Board, of which you 
were Chairman, should, in our judgment, be continued. 
Accordingly, we send you our check for the regular 
quarter due July 1st, 1915, and ask that in the present 
situation, the representatives of the public take the 
credentials of the Cloak, Suit & Skirt Manufacturers 
Protective Association and act for them. We have 
entire confidence in the management and in the work of 
the directors, and so far as we are concerned will give it 
our fullest support. 

Very truly yours, 
The Executive Committee. 
Chas. Heineman, 
Chairman. 



THE JOINT BOARD OF SANITARY CONTROL 51 

Dr. Schieffelin replied as follows: 

June 21st, 1915. 
To the Executive Committee of the 
Cloak, Suit and Skirt Manufacturers' Protective Assn., 
Mr. Charles Heineman, Chairman, 
200 Fifth Avenue, 
New York City. 

Gentlemen: — 

The representatives of the public on the Joint Board of 
Sanitary Control in the Cloak, Suit and Skirt Industry 
beg to acknowledge receipt of your courteous letter of 
June nth, enclosing check for $1,250.00 and requesting 
that the work be continued by us for the Cloak, Suit and 
Skirt Manufacturers' Protective Association. 

Owing to economies of Dr. Price, the Director, we are 
glad to say that there is sufficient money in the treasury 
to enable us to continue for the next two or three months 
without contributions from either side heretofore rep- 
resented in the Joint Board and we are therefore re- 
turning the check. When the funds now in the treasury 
are exhausted and should the Cloak and Skirt Makers' 
Union also indicate its desire to have a continuance of 
the Joint Board of Sanitary Control, the members 
representing the public would be happy to serve both 
organizations. 

We beg to remind your Association that the Joint 
Board of Sanitary Control owes its existence to the 
united action of the Manufacturers' Association and the 
Cloak and Skirt Makers' Union and that we can only 
act under a joint agreement of both. 

With thanks for the appreciation you expressed for the 



52 LAW AND ORDER IN INDUSTRY 

work done by the Joint Board of Sanitary Control, I beg 
to remain, 

Very truly yours, 
(Signed) William Jay Schieffelin, 

Chairman. 

The Board lived from May to August without a vestige 
of legal authority. When the Mayor's Council of Con- 
ciliation met a few weeks later to bring about a renewal 
of relations (see post, 186) the first question put by the 
Chairman was: "Can we secure the consent now of 
both parties to the continuance of the Joint Board of 
Sanitary Control — regardless of what else may be the 
subject of controversy?" And both sides immediately 
answered "Yes." 

In outlining the union's conception of the valuable 
features of the Protocol, its counsel has never failed to 
list first of all the beneficent work of this institution. 
Under the jurisdiction created by the few lines in the 
Protocol, this institution had raised the sanitary stand- 
ards of the entire city, affecting the health and lives of 
not less than eighty thousand workers, had established 
a system of regular fire drills, a system of careful medical 
examination for the workers who applied for it, had 
created a Sick Benefit Fund, had worked out measures 
for fire protection, first aid to the injured, had studied 
a plan for insurance against tuberculosis and other in- 
fectious diseases, and had given instruction in hygiene 



THE JOINT BOARD OF SANITARY CONTROL 53 

to the workers themselves. One of the inspectors (a 
former leader of the union) writes in the Bulletin: 

It takes a good many arguments to convince them (the 
workers) that the body is nourished by fresh air, cleanli- 
ness and sunlight as well as food." * 

Here, then, is an institution which has demonstrated 
its soundness in theory and its utility in practice. Side 
by side, other institutions created by the Protocol failed 
to function so well. Careful study and comparison of 
both success and failure would seem to offer a fruitful 
method for arriving at sound conclusions. 

It is no part of the work of this volume — indeed, the 
intent of the author is quite the reverse — to censure 
or to praise individuals. But the work of the Board of 
Sanitary Control cannot be understood unless we un- 
derstand the Director f and his view-point. He was 
brought to an institution that existed only in theory, 
just as our U. S. Supreme Court existed only in the 
minds of the framers of the Constitution when it was 
signed. It was pioneer work. He came first as one 
of the two nominees appointed by the union; very soon 
thereafter, at the request of the two representatives of 
the employers and the three representatives of the 
public, he became the authorized acting head, with 

* Rose Schneiderman. 
t Dr. George M. Price. 



54 LAW AND ORDER IN INDUSTRY 

the title of Director. From the very outset, the in- 
stitution has had the loyal support of all three sides, 
time, money and energy being freely contributed. The 
Director was a medical man — a doctor who healed sores — 
but filled with a desire to do something better than 
alleviating individual cases of physical distress. To 
him preventive medicine was more important than heal- 
ing the sick. Yet he had been a Health Department 
inspector and knew the practical difficulties of factory 
hygiene. The Joint Board offered to him a great oppor- 
tunity for real social service, and incidentally the ful- 
fillment of a deep personal ambition. He gave up his 
private practice for a more precarious position. (Who 
could tell how long the Protocol would last?) It is 
but simple fairness to state that the Board owes its 
unqualified success to this healer of sores. 

The first step in a carefully outlined program prepared 
by him was to make a careful investigation into the 
facts. Never before was such a survey made of any 
industry. Conditions were found to be bad — not so 
bad as the Doctor found later in other industries when, 
following the same lines, he made surveys for the State 
Factory Commission — but bad enough. Before the 
great Asch Building fire, the Joint Board of Sanitary 
Control had already discovered the fire traps in the 
cloak industry and had given warning to the municipal 
government. 



THE JOINT BOARD OF SANITARY CONTROL 55 

After investigation, the next step was legislation — the 
making of an Industrial Code of Standards for the indus- 
try by the parties themselves. Here the Board went 
slow. It did not seek to bring about the sanitary mil- 
lennium all at once. To illustrate its conservatism: In 
1914 the Director appeared before the State Industrial 
Board in opposition to certain standards offered for 
acceptance by that Board, because in his opinion they 
were too drastic for practical utility. The standards 
he recommended in 1910 were accepted by all parties, 
were amended and improved from year to year, and 
were enforced. How? By rigorous semiannual in- 
spection, by using the disciplinary power of both or- 
ganizations, the union and the association, by using 
the police power of the Labor, Health and Fire De- 
partments, and by education of employer and worker 
both. 

In a Bulletin issued by the Health Commissioner of 
New York City, recommending the Board's work as a 
model for similar industries, he says: 

How well this organization has succeeded in its work 
can best be judged by those who have followed from time 
to time the published reports of its work. Certainly the 
results have been extremely gratifying. Perhaps the 
most important progress made has been in the education 
of both workers and employers. In fact, the main 
difference between the method of inspection and adminis- 
tration as adopted by the Board of Sanitary Control and 



56 LAW AND ORDER IN INDUSTRY 

as conducted by State Labor Departments lies in the 
fact that the former have entirely abolished police and de- 
tective inspection. The object has not been to catch the 
manufacturer in a violation of the law or of the Board's 
regulations, or to force sanitation upon an unwilling and 
unsympathetic object of official attention, but to make 
employers and workers recognize the fact that sanitary 
standards are beneficial to both.* 



The Board has published regular Bulletins,! giving 
outlines of its methods, comparative tables showing 
the progress in the betterment of conditions; it has 
held lectures, mass meetings, and has distributed 
literature widely among the workers, giving them sug- 
gestions for the better care of their health. And it 
has none but friends; employer, worker and social re- 
former all cooperating and finding in their task a 
common one. 

What is there about its work peculiar or unique in 
effectiveness? 

There has been pressure, of course, brought to bear 
for the enforcement of standards, but no coercion. At 
no time was there in evidence a policeman's club of 
any kind. The method has been the rational method 
of the doctor, the educator and the lawyer. Compare 

* Weekly Bulletin of the Department of Health, City of New York, 
November 14, 1914. 

t Copies can be had upon application at 31 Union Square, New 
York City. 



THE JOINT BOARD OF SANITARY CONTROL 57 

its methods with those of the U. S. Commission on 
Industrial Relations.* Then compare the results. No 
blare of trumpets, no denunciation of one side or the 
other, no arousing of prejudices. Just a plain doctor 
or lawyer-like way of getting of the facts: diagnosis, 
then a doctor or lawyer-like way of finding a remedy — 
mind you, with full recognition of all the psychological 
factors involved — and in administering the job, a busi- 
ness man's efficiency producing enough small economies 
to make the average business man stare. A combination 
of the world's experience in sanitation and hygiene, 
brought down to date, with a practical, business-like 
administration, spurred forward by a deep social and 
humane impulse. 

There is as much that is dramatic about such an insti- 
tution as there is about a Red Cross hospital. There is 
more exhilaration to be found in flying an airship over 
the enemy's camp, but here is the longer-run service, 
the contribution of real and lasting value. I venture 
the prophecy that when the contributions of the union 
to social progress in this industry are inventoried and 
appraised, a higher mark of performance and merit 
will be given to the doctor nominated as its first repre- 
sentative than to the various and sundry persons, who 
in 1907 and 1910 broke the law and some one's head 

* See editorial, The Short Cut, The New Republic, September 18, 1915, 
p. 168. 



58 LAW AND ORDER IN INDUSTRY 

at the same time, moved, I make no doubt, by a love 
for their fellows no whit less deep than the Doctor's 
own. 

Quite apart from the great advance in hygiene and 
safety in the industry itself, the Board set the example 
which made it possible, in 1913, to create a similar 
board in the dress and waist industry (where the Asch 
Building fire occurred). It brought about the State 
Industrial Board and furnished, as the Health Com- 
missioner says, the very necessary example for all other 
industries. 

But it did more. It demonstrated beyond cavil or 
criticism what can be done when employer, worker and 
public jointly utilize and utilize intelligently their power 
to accomplish a common purpose. The method employed 
was what the doctor calls the scientific method. The 
lawyer would call it the parliamentary and juridical 
method. Get at the truth first by finding and dissecting 
the evidence. Do it with no prejudice or emotion. Do 
not blink the facts. Hew straight to the line. Then 
apply to the facts the best principles of human conduct 
you can find, those only sustained by the experience 
of mankind. Put your prescription up in a judicial 
decree or in a legislative enactment. And where you 
have an industry in process of self-regulation, provide 
machinery for securing judicial and legislative determi- 
nation. 



THE JOINT BOARD OF SANITARY CONTROL 59 

But suppose you have no police power to enforce your 
decree or your legislative enactment? 

And suppose the "principles of human conduct" 
you seek to apply have not yet been discovered? 



6o 



LAW AND ORDER IN INDUSTRY 



FOUR YEARS PROGRESS 

IN THE 

CLOAK AND SUIT INDUSTRY 
1911—1814 

REDUCTION OF FIRE DANGERS 

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CHAPTER V 

THE BOARD OF GRIEVANCES 

For the purpose of securing some kind of law and 
order in the industry two institutions were created, 
the Board of Arbitration * and the Board of Grievances. 
It is but fair to say that those who devised the scheme 
of both institutions had nothing more definite in mind 
than the acceptance frankly of the probability of con- 
troversy and providing some ready machinery to meet 
it as it arose. Was it practicable to create machinery 
that would stand the strain of continuous and daily 
conflict? No one th^n believed that in the succeeding 
four and one-half years the jurisdiction of the Board of 
Arbitration and the Board of Grievances would be ex- 
ercised in something like 16,000 cases. That cases 
would arise and that they could not be rationally settled 
by either the method of the strike or the lockout was 
clear in the minds of the lawyers who framed the Protocol. 
The eighteenth paragraph of the Protocol provided: 

The parties hereby establish a Committee on Griev- 
ances, consisting of four members composed as follows: 

* See paragraphs XVI and XVII of the Protocol. 
61 






62 LAW AND ORDER IN INDUSTRY 

Two to be named by the manufacturers and two by the 
unions. To said committee shall be submitted all minor 
grievances arising in connection with the business rela- 
tions between the manufacturers and their employees. 

It will be observed that this created a bi-partisan board. 
Its number was very soon increased from four to six 
on each side, with alternates. Its jurisdiction was not 
outlined in detail. Whether it was to be in the nature 
of a legislative body, a conciliation body, or a judicial 
body only subsequent events could and did determine. 
It has since become all three. Obviously the simplest 
cases to dispose of were those in which an employer had 
failed to observe the definite standards established by 
the Protocol. He had worked overtime when work was 
prohibited, or he had worked illegally on a holiday or a 
Sunday, or he had paid less than the scale. Such cases 
presented simple questions of fact. It is one of the 
striking and unique experiences of the workings of this 
Board that throughout its entire experience there never 
was a deadlock upon a question of fact.* (This statement 
was, it is true, controverted during the years 191 2 and 
1913 between the union and the association, and since 
the Board of Arbitration was unable to determine the 
question without a careful investigation into the records 
of the Board, such an investigation was made and was 

* See Bulletin 144, Bureau of Labor Statistics, Department of Labor, 
p. 38. 



THE BOARD OF GRIEVANCES 63 

subsequently adopted officially by the United States 
Department of Labor. It is now known as Bulletin 144 
of the U. S. Department of Labor, Bureau of Labor 
Statistics, entitled, " Industrial Court of the Cloak, 
Suit and Skirt Industry of New York City." It demon- 
strates that upon questions of fact the parties could 
and did come to an agreement.) 

Bearing in mind that the Board had no chairman, 
theoretically it was always subject to deadlock. Assum- 
ing that the representatives of the union would always 
stand by their member and that the representatives of 
the employers' association would stand by theirs, there 
was a strong theoretical probability of deadlock. But 
it is a high tribute to the resourcefulness of both sides 
that such deadlocks never, in fact, occurred. Acute 
controversy in the Board of Grievances and deadlock 
raged about more fundamental matters, matters of 
principle, or as they were called, Protocol Law; but for 
the solution of such controversies the Board of Arbitra- 
tion was created. The very first session of the Board 
of Arbitration in March, 191 1, was devoted to a careful 
study of such fundamental matters and incidentally 
of the work of the Board of Grievances. Before the 
Board of Arbitration the association charged that the 
provisions against strike had been repeatedly violated 
by members of the union without redress on the part 
of the employers. On the other hand, the union charged 



64 LAW AND ORDER IN INDUSTRY 

that they had failed to secure adequate redress for com- 
plaints in " discharge cases." On March 14, 191 1, the 
Board of Arbitration * rendered a decision upon these 
points and formulated, with the aid of counsel for both 
sides, "Rules and Plan of Procedure of the Board of 
Grievances." This was the first constitution or by-laws 
of the Board of Grievances. In its decision, the Board 
of Arbitration, speaking of the workings of the Protocol, 
stated (March, 191 1): 

From the evidence submitted upon this hearing and 
the statement of counsel for both sides, the Board is 
convinced that the Protocol has during the six months 
of its operation fully justified the expectations of its 
drafters, and that its operations have on the whole had a 
most beneficial eft ect upon the relations of the employers 
and employees in the cloak industry. 

After reviewing and praising the work of the Board of 
Sanitary Control (it had made its first report), the 
Board said: 

The work of the Grievance Committee, on the other 
hand, has not been as successful as that of the Sanitary 
Board. 

Why? The Board answers: 

... the fault for the defective operation of the 
Committee does not lie with its members or with the 

* Then consisting of Louis D. Brandeis, Hamilton Holt, and Morris 
Hillquit. 



THE BOARD OF GRIEVANCES 65 

spirit in which the proceedings were conducted. On the 
contrary, it appears that the members of the Committee, 
representatives of both sides to the Protocol, were at all 
times animated by a sincere and earnest desire to adjust 
all grievances brought before them promptly and equita- 
bly, and as a matter of fact, they have succeeded in 
adjusting disputes in a very large number of individual 
cases to the satisfaction of all parties concerned in such 
disputes. 

The Board refers to the fact that in six months no less 
than 119 cases were brought before the Grievance Com- 
mittee, and that of this number 107 had been adjusted, 
and only twelve were pending at the time of the hearings 
before the Board of Arbitration. It finds that: 

The decisions in all cases were unanimous or nearly so, 
and there seem to have been no serious divisions between 
the representatives of employers and employees in any 
case. 

Now note the following observation by the Board of 
Arbitration: 

But the Grievance Committee when established by the 
Protocol, was largely an experiment. The Protocol was 
very meager on the question of the jurisdiction of the 
Committee, and wholly failed to provide for proper rules 
of its procedure. 

Of course, if at the time of the signing of the Protocol 
the draughtsmen had stopped to agree upon a set of 
rules for the Board of Grievances, the strike would not 



66 LAW AND ORDER IN INDUSTRY 

have been settled — there would have been no Protocol. 
Says the Board further: 

The Grievance Committee thus had to evolve its own 
methods in the light of its experience and the exigencies of 
the situation as they arose from time to time. 

It found that the Committee had endeavored "to adopt 
a complete and comprehensive set of rules of procedure 
for the Committee, but in that attempt certain differ- 
ences of opinion (had) developed between counsel for 
both sides." These differences of opinion the Board of 
Arbitration took up and disposed of. 

Its final disposition was the establishment of the rules 
(Appendix B). The differences between the parties 
thus disposed of were important. They related to the 
enforcement of the provisions of the Protocol prohibiting 
shop strikes, and to the method of investigation into 
shop disputes. In short, the differences of opinion pre- 
sented the problem of enforcement of the law and re- 
quired again the invention of rational and simple ma- 
chinery. There were no precedents to go by. For the 
enforcement of the law the following provisions were 
finally adopted as sections XVII, XVIII and XIX of 
the Rules and Plan of Procedure of the Board: 

XVII. If a grievance arises because of the general 
stoppage of work of a shop or department of a shop, 
either by direction of the employer or because of or by 






THE BOARD OF GRIEVANCES 67 

the concurrent action of the employees, upon complaint 
received, the clerks, or their deputies, shall immediately 
proceed to the shop or department where the trouble 
occurs. If the employer is responsible for the stoppage, 
he shall, upon the demand of the clerks, or their deputies, 
immediately recall all his employees, pending the adjust- 
ment by the Board of any grievance he may have, and he 
shall thereupon frame and present his grievance; if the 
employees are responsible for the stoppage, notice shall 
be immediately given to them to return to work pending 
adjustment of the grievance by the Board and the chair- 
man of the Price Committee shall immediately direct 
them to return to work. 

XVIII. A violation of the provision of Section XVII 
of these rules or of Section XVII of the Protocol, by either 
employer or employee, shall constitute a grievance to be 
presented to the Board of Grievances. If, after hearing, 
the Board finds the defendant guilty, the order of the 
Board shall be made the basis of prompt discipline in the 
Association or the Unions as the case may be. Such 
discipline shall consist of a suitable fine or expulsion. 
The action so taken shall forthwith be reported in writing 
to the Board of Grievances. 

Under these rules the name of the tribunal was changed 
from "Committee" to "Board of Grievances." 

Upon this branch of the subject, it will be observed, 
reliance is placed entirely upon the enforcement of the 
law by the party whose member offends. This principle 
of enforcement applies to each side. The association is 
to discipline its own member guilty of violating the law; 
the union is to discipline its own member guilty of vio- 



68 LAW AND ORDER IN INDUSTRY 

lating the law. Each reserves the right of trial of its 
own members. Note here the distinction in method 
between the workings of the Board of Sanitary Control 
and the Board of Grievances: The Board of Sanitary 
Control could call to its assistance the powers of the 
State and the municipality and could bring to bear 
the pressure of public opinion. But for the suppression 
of the shop strike or the enforcement of Protocol stand- 
ards upon members of the association, each of the parties 
to the agreement is dependent upon the other for the 
exercise in good faith of such pressure as it can bring 
to bear upon its own member. For the enforcement 
of standards upon employers not members of the asso- 
ciation, the latter is dependent wholly upon the union. 
How far this proved effective we shall see later. 

Upon the other branch of the controversy presented 
to the Board of Arbitration, namely, the method to be 
employed for ascertaining the facts and adjusting an 
ordinary shop controversy, there was devised the sys- 
tem of shop investigation by clerks and deputy clerks. 
This introduced an entirely new system, copied, so far 
as I know, from no other experience and later the sub- 
ject of much controversy and criticism. It will bear 
careful analysis. 



CHAPTER VI 

THE CHIEF CLERKS AND THE DEPUTIES 

The March, 191 1, session of the Board of Arbitra- 
tion involved debate over a rule proposed by the unions, 
which meant in effect the authorization of the repre- 
sentatives of the unions or any persons designated by 
them to inspect shops, even where no charge had been 
lodged against the employer, in order, as stated by the 
union, to ascertain whether the provisions of the Proto- 
col were being lived up to in such shops, and in order 
also to afford the unions an opportunity to investigate 
informal complaints, so as to determine whether they 
should be brought before the Grievance Committee. 
On behalf of the unions it was contended that in the 
absence of such a rule complete justice could not be 
done to the employees, for the reason that many of 
them would fail to present grievances, even if they were 
fully justified, for fear of being disciplined by the em- 
ployer; and that, on the other hand, a preliminary in- 
vestigation by the union representatives would avoid 
bringing before the Grievance Committee trivial com- 
plaints. The employers, on the other side, asserted 
that such a rule would result in frequent and arbitrary 

69 



70 LAW AND ORDER IN INDUSTRY 

visits of union representatives in the shops, would stimu- 
late unnecessary complaints, disturb shop routine and 
cause needless friction between the employers and the 
employees. In short, they saw in the proposal of the 
union the reestablishment of the old-fashioned walking 
delegate. Doubtless the union had good reason for 
believing in the efficacy of the system it proposed. It 
seemed simple. Upon complaint of any member of 
the union the walking delegate would appear and en- 
deavor to adjust the matter with the employer. If he 
failed, a shop strike would ensue. But usually the effect- 
iveness of the threat was the determining factor in 
the adjustment of the case. If the walking delegate 
were of a conciliatory temperament and the employer 
was disposed to be fair, there might be little difficulty. 
On the other hand, if the walking delegate felt called 
upon always to fight for his side, the employer could 
not secure fair treatment, and there would be constant 
conflict. Justice would be administered, then, upon 
the basis of the temporary strength and weaknesses of 
the contestants and not upon the real merits of the 
controversy. Naturally, such a plan was not acceptable. 
The Board of Arbitration, to meet both sides' re- 
quirements, adopted the method now outlined in Rules 
IV and XI (Appendix B). In brief, this system provides 
first for the submission of a complaint in writing by 
the organization whose member is aggrieved to the 



THE CHIEF CLERKS AND THE DEPUTIES 71 

organization whose member is complained of; then an 
investigation into the facts at the shops by representa- 
tives of both sides, attending at the same time, these 
representatives (the clerks) endeavoring to ascertain 
the truth, and as often as practicable coming to a joint 
verdict upon the evidence; finally, an adjustment of 
the difficulty by them, if an adjustment can be arrived 
at. If the clerks agree, it is an end to the case, except 
that the employer may appeal to the Board of Grievances. 
If the clerks deadlock, the matter then comes to the 
Board of Grievances for its consideration. Under this 
system some fourteen or fifteen thousand complaints 
were liquidated. 

This system has been carefully studied. In May, 
1913, the union having requested an amendment to 
the Protocol which would provide for an additional 
person to be known as the " Impartial Referee" to sit 
with the Board of Grievances, the union contended 
that it did not receive adequate justice under the exist- 
ing procedure. The manufacturers' association denied 
the charge, contending that the claim of the unions 
could easily be disproved "by an examination of the 
records of the board of grievances; that the system 
proposed by the unions would be destructive of the 
existing system of arbitration and conciliation, and 
would practically put the control of the industry in the 
hands of a single outside person. . . ." The parties 



72 LAW AND ORDER IN INDUSTRY 

having deadlocked on this point, an appeal was taken 
to the Board of Arbitration under Rule XXI. After 
numerous hearings before the Board, that body decided 
that before it could arrive at any decision it would make 
a careful study of the workings of the Board of Griev- 
ances, and thus reveal the nature and disposition of 
the cases it had passed upon, and " further to reveal 
the efficiency of this organization in fulfilling its primary 
functions, viz., administering justice in the industry, 
supervising the adjustment of grievances by the clerks, 
and adjusting aggravated cases upon which the clerks 
could not reach a decision." This investigation was 
carried on by the same representative of the U. S. Gov- 
ernment * who in 191 2 had made a study of the industry 
for the United States Department of Labor.f His re- 
port is Bulletin 144, already alluded to. It contains 
in detail an analysis of the work of the Board of Griev- 
ances, a statement of the quality of the legislative and 
judicial work done by the Board, and an analysis of the 
character of cases adjudicated upon by the clerks and 
by the Board of Grievances. The investigation dis- 
closed that out of a total of 7,656 complaints filed be- 
tween April 15, 191 1, the date of the creation of the 
Board of Grievances, and October 31, 1913, 7,477, or 
97.7 per cent, were adjusted by the clerks. The balance, 

* Charles H. Winslow. 
t Bulletin 98. 



THE CHIEF CLERKS AND THE DEPUTIES 73 

179, or 2.3 per cent, were handled by the Board of Griev- 
ances. Of the latter group, 159 were settled by the 
Board. The remaining 20, the Board being unable to 
agree, were referred to the Board of Arbitration for 
final adjudication. Of these 20 cases, 12 involved the 
same disputed point — a controversy over the inter- 
pretation of the Protocol as to the payment for a 
holiday. As this involved a question of interpreta- 
tion which could be passed upon finally only by the 
Board of Arbitration, it left but 9 actually deadlocked 
cases. In other words, one-tenth of one per cent of all 
the cases that arose during the entire period of the 
existence of the Protocol up to that time were dead- 
locked in the Board of Grievances. Of these nine cases, 
the investigation showed that they were cases involving 
serious and fundamental differences. 

The findings of this investigation establish that, upon 
the whole, the system devised in 191 1 worked satisfac- 
torily in 99 per cent of the cases; yet because of the 
1 per cent it broke down partially in 19 13 and com- 
pletely in 1915. Why? 



CHAPTER VII 

A SIDELIGHT 

Before proceeding further with the study of the 
cloak and suit industry, let us turn to another experiment 
in another city, in an industry very similar, though not 
precisely the same, but which owes its machinery in 
very large measure to the experiences in the New York 
cloak and suit industry. It is the story of the four years' 
experience of a clothing firm of national reputation,* 
synchronizing in time and method with the experiences 
we are studying here. The experience has been graphi- 
cally reviewed under the title "A Way to Industrial 
Peace/'f In 191 1 a strike affecting the entire men's 
clothing industry in Chicago and involving fifty thousand 
people broke out. The strike was settled, so far as the 
one firm in question was concerned, by the establish- 
ment of an arbitration committee of three, one selected 
by the firm, one by the workers, and the two choosing a 
third. Provision was made that, "Said committee shall 
consider and adjust whatever grievances employees may 
have, and shall fix a method of settlement of grievances 

* Hart, Schaffner and Marx, 
t George Creel: The Century, July, 191 5. 

74 



A SIDELIGHT 75 

in the future, findings to be binding on both parties/' * 
On March 13th this Board of Arbitration handed down 
a decision which contained the following paragraph: 

As to any future grievances, the firm shall establish 
some method of handling such grievances through some 
person or persons in its employ, and any employee, either 
by himself or an individual fellow worker, shall have the 
right to present any grievance at any reasonable time, 
and such grievance shall be promptly considered by 
the person or persons appointed by said firm, and in case 
such grievance shall not be adjusted, the person feeling 
himself so aggrieved shall have the right to apply to some 
member of said firm for adjustment of said grievance, 
and in case the same shall not be adjusted, such grievance 
may be presented to Clarence Darrow and Carl Meyer, 
who shall be constituted as a permanent board of arbi- 
tration to settle any questions that may arise between 
any of the employees and said firm, for the term of two 
years from April 1, 1911.! 

After studying the New York experience the employers 
established a labor department and placed in charge a 
trained economist and industrial expert. To this depart- 
ment was given over the handling of all grievances. The 
work of the Board of Arbitration became so engrossing 
that it was soon found necessary to establish a sub- 
ordinate tribunal. This tribunal consisted of a trade 

* George Creel: A Way to Industrial Peace, The Century, July, 
1915, P. 436. 



*j6 LAW AND ORDER IN INDUSTRY 

court, composed of five foremen, five workers, and an 
impartial umpire. The head of the labor department 
for the employers became one of the two chief clerks of 
this board. The leader of the union became the other 
chief clerk. In 1913 the same controversy that arose in 
the New York cloak strike in 1910 came up, the fight 
of the union for the closed shop. The position of the 
employers was stated by the head of the firm as follows: 

As long as the unions are working toward the ideal of 
justice to every interest connected with the institution 
and the highest economic efficiency — performing duty 
to everybody inside and outside the institution — em- 
ployees, stockholders, customers, and the general public, 
we wish to see them strong. Because there is no guaranty 
that those who control the unions will hold to this ideal, 
we do not care to be committed to the " closed shop." * 

After careful study of the workings of the preferential 
union shop in New York, the parties agreed upon the 
following tentative working basis: 

That the firm agrees to this principle of preference: 
they will agree to prefer union men in the hiring of new 
employees, subject to reasonable restrictions, and also 
to prefer union men in dismissal on account of slack 
work, subject to a reasonable preference to older em- 
ployees, to be arranged by the board of arbitration, it 
being understood that all who have worked for the firm 
six months shall be considered old employees.* 

* George Creel: A Way to Industrial Peace, The Century, July, 1915, 
p. 438. 



A SIDELIGHT 77 

The Board of Arbitration held also that the door of the 
union must be kept open for the reception of non-union 
workers; that initiation fees and dues must be main- 
tained at a reasonable rate, and that if any rules be 
passed that impose unreasonable hardship or that operate 
to bar desirable persons, there may be instant appeal 
to the Trade Board or to the Board of Arbitration. 

The verdict upon the experience in this industry is 
stated in the language of the head of the firm: 

Industrial peace will never come so long as either 
employer or employee believes that he is being deprived 
of rights honestly belonging to him. 

Arbitration and conciliation should be applied to all 
departments of a business wherever there is a conflict 
of interest. If nothing more, it insures exhaustive dis- 
cussion of every matter of importance, gives everybody 
an opportunity to express his opinions, frequently brings 
to light valuable suggestions, and makes possible a higher 
degree of cooperation and team-work. It is a method to 
be employed continuously to secure harmony and satis- 
faction. 

Patience and self-control are essential in administering 
a business on this basis. It is human nature to resent 
interference and to desire unrestricted liberty of action, 
but these conditions are not necessary and are often 
inimical to true success. Few men can use unlimited 
power wisely, and no wise man will dispense with checks 
which tend to keep him in the right path; certainly he 
will approve of checks calculated to restrain his agents 
from arbitrary and unjust acts to fellow employees. I 
have found that disputes once settled, even if one side 



78 LAW AND ORDER IN INDUSTRY 

loses, are seldom causes of trouble. It is the unsettled 
disputes that are dangerous. This failure of adjustment 
is largely due to the lack of means for determining what 
is right or wrong, the lack of a common code, and the 
absence of a disinterested authority whose judgment is 
respected by both sides. 

We did not realize, and we believe the majority of 
employers do not yet realize, the extent to which the 
attitude and conduct of their organized employees reflect 
their own policies and conduct. 

In our own business, employing thousands of persons, 
some of them newly arrived immigrants, many of them 
in opposition to the wage system and hostile to em- 
ployers as a class, we have observed astonishing changes 
in their attitude during the four years under the influence 
of our labor arrangement. They have come to feel that 
they can rely upon promises made by the company, 
and that justice will be done them by a system in which 
they themselves have a voice; and as a result, they are 
proud of their own honor, careful of their promises, and 
equally eager for justice to all.* 

I heard this gentleman testify during the winter of 

1914 before the United States Commission on Industrial 

Relations, and I heard him say then that he would not 

care to go back to the old system for any price. I know 

from personal inquiry and study of the reports of the 

firm that there is increased efficiency and productivity, 

higher wages and larger dividends. From both employer 

and union leader I have learned that the system works 

* George Creel: A Way to Industrial Peace, The Century, July, 
1915, p. 440. 



A SIDELIGHT 79 

to the complete satisfaction of both. The representa- 
tive of the union in Chicago was, in 1914, called to New 
York to take charge for the Cloakmakers' Union of 
their interests, and would have continued, if he had 
not been called away to become the leader of the Amal- 
gamated Clothing Workers of America, a new and in- 
surgent organization with a membership close to one 
hundred thousand, made up of clothing workers in the 
men's line. In 1913, when I intimated to the head of 
the firm that the Chicago union leader with whom he 
dealt might be called to New York to take active part 
in the cloak situation, he told me that he would regard 
it as a distinct loss to Chicago, for, as he put it, it was 
due to the union leader's common sense and fair way of 
handling matters that the collective agreement had 
worked so well. He modestly refrained from mentioning 
his own part. Notwithstanding this approval on the 
part of the employer, this young leader retained the sup- 
port and confidence of his own constituents, and, more- 
over, as I have stated, was later elected to the highest 
position to which they could advance him.* 

The principles underlying the Chicago experience 
were the same as those underlying the New York ex- 
perience. The machinery in each case was substantially 
the same. A Trade Board (Board of Grievances), a 
Board of Arbitration, and the dual clerk method of 
* Sidney Hillman. 



80 LAW AND ORDER IN INDUSTRY 

investigation and conciliation; the preferential union 
shop and joint working of union and employer, with an 
agreement to substitute the methods of reason and or- 
der for the strike and lockout. In the Chicago instance 
we find the system working to the complete satisfaction 
of the employer, the union and the public. It is a busi- 
ness as well as a social success. In New York it does 
not achieve the same complete result. Why not? If 
we find in the one case factors absent in the other, it 
may give the clew to the completer explanation. 

Observe that the Chicago firm had a monopoly of a 
brand. Its name had been blazoned forth in magazine 
and newspaper pages for over a decade. It had boldly 
come to New York and challenged competition with 
the best of its New York competitors upon their own 
ground. Its brand or trade-name had cost — I am sure — 
at least a million dollars of advertising. It had keen 
competition, to be sure, but in addition to its application 
of modern methods of salesmanship to its business, it 
had introduced efficiency methods into its factory. 

Observe that it was one firm dealing with a union — 
not two or three hundred different employers of varying 
ideals, education and business training. The head of 
the house and the union leader dealing with each other 
single-handed and when these two agree, the policy 
settled; moreover, certain to be carried out; no short 
circuiting and no crossing of wires. From the public 






A SIDELIGHT 8 1 

utterances of the head of the house we learn that he 
began by distrusting collective bargaining and ended, 
by slow degrees, in a plan to strengthen the union. He 
found it to the business interest of his firm to accord 
the fullest cooperation to the union leader. Observe 
that he must meet the keen competition not only of his 
Chicago associates but the competition of New York, 
Rochester and Baltimore. Yet he freely admits that 
he finds it much easier to work alone than to work in 
association with a group of his competitors. Observe, 
also, that the competition is the competition of large 
units, not small ones, where the strike is a more effective 
weapon. Observe that the same union leader represented 
the union in its dealing with the competitor shops, and 
the same standards are effectively maintained through- 
out the entire city. 

Note the type of men on both sides. The head of the 
house, a man of education, of faith and of vision, and 
open to reason; the union leader, a man of faith and of 
vision, and open to reason, the latter outspoken in his dis- 
approval of violence and all other kinds of law breaking, 
courting the approval of the disinterested public and 
trusting entirely to the reasonableness of the positions 
he takes to win their way, never blatant, never threaten- 
ing, never coercive, quietly persistent and absolutely 
trustworthy in his statements and in his promises. 
Though it is known throughout Chicago that he and the 



82 LAW AND ORDER IN INDUSTRY 

head of the house are in frequent intimate consultation, 
he retains, as we observe, the entire confidence of a union 
made up of more than a dozen different nationalities — to 
such an extent that later, with no effort on his part, in- 
deed, without his preknowledge, he is chosen the national 
leader of the tailors. He trusts the head of the house 
and the head of the house trusts him. Each carries 
out his promises to the other. The head of the house, 
a man open to every new idea that can be tested by the 
standards of common sense. There is no newspaper 
agitation against the employer, no klassenkampf . There 
is a joint effort, by methods of reason, to achieve a 
common object: to improve the industry and thus im- 
prove the condition of the workers. The Chicago ma- 
chinery moves with the same smoothness as does the 
machinery of the Joint Board of Sanitary Control in 
New York. The joint work of the head of the house 
and the union leader in Chicago bears striking resem- 
blance to the work of the Director of the Sanitary Board 
in New York. 

Perhaps we have gone far enough to set down for sub- 
sequent test at least three hypotheses consistent with 
the facts in the Chicago situation : 

i. Given institutions for preserving law and order in 
industry and for improving the welfare of the industry, the 
enterprise will prove valuable to employer and worker alike, 
provided it is carried out in a spirit of mutual helpfulness 



A SIDELIGHT 83 

and with a recognition of the business factors in the joint 
problem. Given leaders on both sides who trust each other, 
the underlying spirit of the institutions will find expres- 
sion in day to day progress. 

2. Let either side seek to impose its will upon the other 
by coercion; let either side play unfair, and the institu- 
tions — however well-planned — will crumble and fall. 

3. The consumer is an important factor in the problem, 



CHAPTER VIII 

THE NEW YORK CLOAK BUSINESS 

The competition between the man's personally se- 
lected tailor and the manufacturer of ready-to-wear 
garments is less than fifty years old. The Civil War 
created a demand for military garments in large quanti- 
ties to be made up on short-time requisitions. This 
stimulated cutting many garments with one cut of the 
shears, and the experience led to the manufacture in 
large quantities of cheap civilian clothes ready to "put 
on your back/' cheaper than you could buy them at 
the tailor's. It is within the memory of the present gen- 
eration that handsome college youths first appeared on 
magazine pages wearing immaculately fitting dress suits, 
or tennis coats, or warm ulsters, and bade us discharge 
our tailors. From these advertisings grew the great 
men's clothing manufacturers whose brands are now 
known throughout the entire country, even abroad. 

A half century ago a few enterprising clothing manu- 
facturers conceived the notion of making women's 
mantles or wraps; first a woman's simple cape, then a 
tailor-like coat, then (when the shirt waist came in) a 
woman's separate skirt. They succeeded in making 



THE NEW YORK CLOAK BUSINESS 85 

the beginnings of an industry. With the introduction 
of fin6r art in women's wear, there came into being and 
grew with steam-engine rapidity the industry whose 
workers now number over a hundred and fifty thousand 
and whose product runs into millions annually. The 
men who developed the men's clothing industry were 
in most instances sons of immigrants. The men who 
developed the women's clothing industry were also 
sons of immigrants. But the workers in the shops were 
for the most part immigrants, though in the early 
period there were some Americans. There was quick 
transition from worker to employer. Among the em- 
ployers to-day, few can be found who did not in their 
earlier days actually work in a factory. And many of 
them — perhaps the hardest taskmasters — have a history 
as strike leaders. In the early days, skill consisted in 
making large quantities cheap. It was an asset to have 
a large stock made up, ready for quick delivery. To- 
day, with styles changing overnight, large stocks are 
liabilities; the buyer waits till the last bell rings for the 
season's opening, then orders a few of each design to 
try out on the public, expecting re-orders to be filled 
on telephone, but knowing they must be made up for 
his order. To design all the varying morning, afternoon 
and evening clothes that beckon from beautiful shop 
windows or adorn handsome ladies in the Sunday sup- 
plement requires a high degree of artistic skill, a ready 



86 LAW AND ORDER IN INDUSTRY 

and constant touch with the centers of fashion, a knowl- 
edge of textiles and their values, and an administrative 
ability of high order.* To lead in the industry in 1910 
meant to have taste, skill, resourcefulness, imagination 
and courage. On the other hand, there was not much 
of that fine degree of factory efficiency nor that persist- 
ent search for small economies that now characterizes 
the successful factory of 191 5. 

The industry is a style industry. It is also a seasonal 
industry. This makes it part of the great unem- 
ployment problem of the country, upon which latter 
point we shall be called to dwell later. But because it 
is a seasonal industry, there is feverish work for six 
months and comparative idleness for the rest of the 
year and obviously twelve months' overhead charges 
for six months of operation. 

The rents are enormously high. Factory must be 
near salesroom. The successful manufacturer is at once 
salesman, designer, factory manager, financier and in- 
dustrial expert. All his departments, therefore, must 
be within his immediate reach. High-priced lofts near 
the city's hotel and railroad centers offer him his only 
opportunity. 

He must have shapely and attractive mannequins to 
march about his salesroom and carry his creations be- 

*See extract from Bulletin 147, U. S. Department of Labor, post, 
pp. 131-2. 



THE NEW YORK CLOAK BUSINESS 87 

witchingly. He must make frequent visits abroad, 
studying the Parisian designs and purchasing high- 
priced models. 

All this takes head-work, nervous energy, and capi- 
tal. According to all economic philosophy, the cloak 
manufacturer is a capitalist, but he has more hours of 
actual work to his daily stint than a day laborer, and 
if nervous condition is a fair test of physical well-being, 
he is little better off than the cutter or presser in his 
shop. He is bound to die young, because he burns him- 
self up. The industry is far behind others of older 
growth in these important respects: 

It lacks sub-division of responsibility. Each business 
is a, one-man institution. It lacks office and factory 
efficiency. And— prior to 1910 — it lacked organization. 
It has now had only five years of training in ordinary 
methods of trade organization. 

There has been no effort to create brands, only one 
or two houses, and those outside of New York, following 
the example of the manufacturers of men's clothing. 

The dealings between the manufacturers and the re- 
tailers are full of all kinds of trade abuses: cancellation 
of orders, unreasonable claims for damages, unjustified 
discounts, etc. 

On top of all these difficulties comes another: It is to be 
noted that the law of copyright has never yet been applied 
to fashion. The Paris designer, a student of the compre- 



88 LAW AND ORDER IN INDUSTRY 

hensive foreign libraries, copies from the ancients. The 
American designer copies from the Parisian. Just as the 
lawyer freely quotes from the briefs written by his pred- 
ecessors (without making any acknowledgment), so the 
designer of women's wear freely copies without any by- 
your-leave. This freedom of copying designs has gone 
to such lengths within the past two decades that it is one 
of the menacing evils of the industry. To amplify . . . 
I have given my life to a study of design. ... I have 
gone abroad and purchased the Parisian products of the 
best fashion artists in the world. . . . My bill leaps into 
the thousands of dollars, both for expenses abroad and 
such models as I must purchase. ... I have employed 
expensive artists here. ... As the result of their work 
and mine and the labors of my high-priced sample-making 
department, I have created something which I believe 
will appeal to the American woman. . . . Yet I know 
that within forty-eight hours after the first copy is 
exhibited in a retail department store, it will be purchased 
by one of my competitors and copied. I know more. . . . 
I know that at the corner of Twenty-third Street and 
Fifth Avenue they are selling in market sketches of such 
of my designs as can be secretly captured. What pro- 
tection have I? . . . My only escape is multiplicity and 
rapidity of design at such frequent intervals that my com- 
petitors lag behind me. 
But all the garments made in the women's wear in- 









THE NEW YORK CLOAK BUSINESS 89 

dustry are not made for ladies of fashion, you will say. 
The answer is that all ladies are ladies of fashion. Ameri- 
can women are reputed to be the best dressed women in 
the world. The very large bulk that goes to make up 
the millions recorded in the census tables is worn by 
working girls and women. But their tastes, too, are 
determined by the trend of fashion. The design of the 
popular-priced garment follows closely in the wake of 
the finer and more exclusive model. Before the strike of 
1910 few of the manufacturers confined themselves wholly 
to the manufacture of exclusive designs. Nearly all 
carried a supplemental line of popular-priced goods. 
But in addition to the high-grade and popular-priced 
garments, there were quantities and quantities of gar- 
ments of very cheap quality made for consumption 
throughout the country. The popular song in New York 
City to-day will be heard in some Western town three 
years from now. The sheet of music that now brings its 
forty or fifty cents in New York will then be sold in the 
Five and Ten Cent Store. The same spread of the new 
design takes place with the popular woman's garment. 

We are thrown, then, into an industry, broadly speak- 
ing, where two elements control — the element of design 
and the element of cost of production; one group of 
manufacturers bent upon rapidly executing movements 
in the direction of high-priced and excellently made 
garments; another in the direction of producing large 






90 LAW AND ORDER IN INDUSTRY 



quantities at the lowest possible cost, but none making 
up stock in quantities in advance of sales. Neither of 
these trade movements is independent of the other. 
Each reacts upon the other. In a general way it can be 
assumed that the cost of material is approximately 
the same to the manufacturer of high-grade goods as 
it is to the manufacturer of the popular-priced goods, 
given the same quality and texture of material. But 
there is a very marked divergence in overhead charges 
and cost of labor. The old-fashioned sweatshop operator 
could successfully compete against the uptown manu- 
facturer, first, because his overhead charges were low — 
far below the uptown man's, and secondly, because his 
cost of labor was very much less. His hours of labor 
were longer and the price of labor was lower. If he had a 
small shop and fewer people to deal with, he had very 
much less rent to pay, he made no trips abroad, he 
bought no designs, employed no mannequins, and was 
his own designer, salesman, and often his own cutter. 
Indeed, the biography of many of the big manufacturers 
of to-day begins as employers at the point where they 
stopped cutting or pressing garments as employees of 
others, became "contrac tors" for some larger employer, 
then graduated into the employers' group, accumulated 
capital out of small profits, lived on the most economical 
scale, and captured the styles of others as freely as their 
present competitors now capture theirs. 



THE NEW YORK CLOAK BUSINESS 91 

The day of the specialty store, that is, the store where 
nothing but women's garments is sold, in 19 10 had not 
yet arrived. The retail disposition of women's garments 
was wholly in the hands of the department stores. The 
manufacturer was to a great extent at the mercy of the 
department store management, unless he could produce 
something of such rare excellence and beauty that the 
retailer was obliged to come to him. That the depart- 
ment stores had much to do with the copying of styles 
and the establishment of new manufacturers is not dis- 
puted by those who know the trade. The finger is fre- 
quently pointed at specific department store owners who 
in the past made a specialty of buying fine garments 
from leading manufacturers and then establishing others 
in business, furnishing them with successful " numbers' ' 
to make up for sale at " bargain-counter prices." 

Into this industry came a union. Another nuisance 
to add to the plagues of the manufacturer ! Is there any 
wonder that at first it was ignored, then fought, and only 
with reluctance accepted as a factor? Then, if, through 
the union, some order could be brought out of this chaos, 
hailed with hope! If all paid the same price for the same 
labor, as all paid for the same merchandise, efficiency 
as manufacturers would count for something against 
unscrupulous competitors. If we could be sure that 
everybody would observe fifty hours a week, pay double 
pay for overtime, and close up on holidays when we 



92 LAW AND ORDER IN INDUSTRY 






did, we could readily raise the standards of working 
conditions. In 1910, at the time of the Brandeis con- 
ferences, this was the dominant note on the part of 
the manufacturers. As stated in Chapter III, the 
consideration for the great advances given to the work- 
ers was the promise of a rational and peaceable method 
for securing adjustment of future controversies and 
the equal enforcement of standards and wage condi- 
tions throughout the entire industry.* The standards 
were established. Under the preferential union shop 
provisions, the union secured almost complete control 
of the workers. Theoretically, the law of the Protocol 
was the law of the industry. In the Employers' Associa- 
tion, if a member violated the Protocol, complaint was 
made by the union and investigation followed. If he 
underpaid the scale his own books would disclose the 
evidence; there was no constitutional protection against 
furnishing self-incriminating evidence. He was obliged 
to comply with the rules. His first offense would be 
followed by a warning; his second by a fine, and his 
third by expulsion. In the non-Association shops the 
union was (theoretically) in complete control. These 
were the shops of the closed shop agreements, where the 
walking delegate was free to enter and where the right 
to strike was unabridged. 
In 191 2 something new happened. Manufacturers 
* See page 39. 



THE NEW YORK CLOAK BUSINESS 93 

began buying goods from manufacturers. Prior to 191 2 a 
"jobber," so called, was a man who bought job lots of 
undisposed of garments, either directly from manufac- 
turers or at auction sale, and sold them to retailers for 
bargain-counter sales. In 1912, 1913, 1914, and 191 5 
jobbers became more numerous and their annual business 
mounted into the millions. Manufacturers who had been 
in the industry for years, who had established splendid 
organizations, were offered garments, complete and 
ready for delivery, at prices so far below what they could 
produce them for in their own shops that they opened 
their eyes in amazement. This was particularly true of 
the popular-priced garment. Steadily but certainly 
the great volume of work, the "bundles" as they are 
called in the trade, began to go from the "inside" to 
the "outside" shop. Why manufacture when you can 
job? By 1913 the matter had become one of grave con- 
cern both to the leaders of the union and to the lead- 
ers of the manufacturers' association. It was a subject 

j of repeated conference and discussion. The remedy 
proposed by the union was simple. It was to throw upon 

; the members of the employers' association the burden 
of maintaining standards in all the shops whose merchan- 
dise they bought. From the manufacturers' view-point 
this meant an inevitable diminution in the membership 
of the employers' association and an increase in the 
number of jobbers. There was no law by which a man- 



94 LAW AND ORDER IN INDUSTRY 

ufacturer could be compelled to remain a manufacturer 
and a member of the association. What was the ex- 
planation for this trade movement? It has been offered 
by one of the manufacturers: 

The cloak industry is not a " capitalistic" industry in 
the usually accepted meaning of this term; only a few 
hundred dollars are required to organize a shop. A 
worker or foreman, having saved the necessary amount, 
engages in business, and makes up his staff of workers 
from relatives or friends, immigrants who work under any 
and all conditions, only too ready to accept employment 
below union standards. This so-called "social" shop 
the union is unable to control. The union allegiance in 
such a shop is naturally weak, and the union officials 
naturally prefer the easier work of enforcing conditions 
in the larger shop units. In the "social" shop everything 
is easy. The boss gets along with his people and there 
are no "grievances." The union hears of no complaints 
and on paper everything is lovely. The small shops, 
therefore, increase in number; new employers spring 
up over night, and the cost of manufacturing tells the 
tale to the association employer. The difference in cost of 
labor cannot be accounted for by the difference in piece 
prices. It is made up by the opportunity in the "social" 
shop to work people longer hours, Saturday afternoons, 
holidays, to cut by piece (instead of upon a week-work 
basis), to press by piece, and to do many other things 
forbidden by the Protocol, impossible in the association 
shop, but quite practicable in the "social" shop.* 

If the manufacturers blamed the union for these con- 
* Letter of Max Meyer, New York Times, July 8, 19 15. 



THE NEW YORK CLOAK BUSINESS 95 

ditions, the union, with equal facility, blamed the man- 
ufacturers. The reply to the manufacturer by the 
union was that the conditions existed because skilled 
workers were discharged at the end of every season and 
were thus induced to " borrow a little money from their 
friends and relatives and start a small ' social' shop, or 
some semblance to it" and that the larger manufacturers 
"aid these small shops financially, purchase their product 
or place with them direct orders for goods" and thus 
"are themselves responsible for the cut- throat compe- 
tition abounding in the industry." * It will be observed 
that though each throws the responsibility upon the other, 
both agree upon the fact of the existence of the evil and 
the prime and pressing necessity for its elimination. (Ob- 
viously, if both are so far agreed, why not a joint 
remedy?) 

It has frequently been assumed that the real cause of 
the difficulty is the absence of standards for piece rates.f 
It is true that as to seventy-five per cent of the prices for 
labor there is no standard, and each garment is separately 
estimated upon before it can be put into operation. The 
] difficulties inherent in this problem for the shop can be 
imagined when it is recalled that the success of the 
high-grade shop is dependent upon the variety of styles it 

* Sidelights on the Recent Controversy, The Ladies 1 Garment Worker, 
September, 1915, p. 8. 
t See letter of George W. Alger, The New Republic, June 19, 1915, 
1 P. 179. 



96 LAW AND ORDER IN INDUSTRY 

creates. The price of labor is determined in each case 
by a process of haggling between the representatives of 
the shop on the so-called " price committee" and the 
employer. So far as this fixing of piece rates is con- 
cerned, it is literally true that the employers deal with 
two thousand unions instead of with one. In the lan- 
guage of the President of the union: 

Prices for one and the same garment varied in every 
shop. The stronger party at the bargaining invariably 
prevailed. Our Union controls some two thousand shops 
in New York; yet it was not the Union that controlled 
the prices but two thousand separate "unions," each 
shop acting independently of the other. 

This method had a doubly-unfortunate effect on the 
condition of the trade.* 

Though seventy-five per cent of the prices of labor are 
fixed by this process of haggling, it does not follow that 
the piece price operation is seventy-five per cent of the 
labor cost of the product. The difference between the 
piece rate in one shop and the piece rate in another in 
the cloak industry could not possibly make for the wide 
divergence in the wholesale marketing price of the gar- 
ment. It is the contention of manufacturers who have 
studied the matter that the marked difference is due to 
the freedom the non-Association employer enjoys from 
the exacting conditions of the Protocol. On the other 

* B. Schlesinger: Our Recent Struggle and Its Results, The Ladies 1 
Garment Worker, September, 19 15, p. 16. 



THE NEW YORK CLOAK BUSINESS 97 

hand, there is a very prevalent fear on the part of a con- 
siderable number of manufacturers that, just as the 
specialty shop has in many respects the advantage over 
the high-priced department store, so the little manu- 
facturer has a natural advantage. As this chapter is 
being written, a Philadelphia manufacturer is reported 
to express the fear that "in five years the large cloak 
and suit shops will have disappeared" and bases this 
prediction upon his belief that "the manufacturer, by 
giving his work out, can have it done much cheaper than 
he can do it himself with high-priced cutters and other 
more expensive employees and heavier overhead ex- 
penses, rent," etc. "The time is coming," he says, "when 
they will cease manufacturing in their own plants, give 
the work out, and become jobbers." * 

In a study of the problem of standardizing piece 
rates in the dress and waist industry,! now published 
as Bulletin 146 of the United States Department of 
Labor, Bureau of Labor Statistics, very much the same 
problem is disclosed. The director of the investigation 
states: 

The chief difficulty with a piece-rate schedule for the 
making of garments is in finding a satisfactory basis that 
will meet the varying conditions under which the prod- 

* See Women's Wear, September 18, 1915, under heading "Coats and 
Suits." 
t Made by Dr. N. I. Stone. 






98 LAW AND ORDER IN INDUSTRY 

ucts of the garment industry are made. Styles of gar- 
ments change very radically, and the amount of work 
necessary to produce two garments selling at the same 
price may differ one hundred per cent, and sometimes a 
great deal more. In one case there will be comparatively 
little labor and finer material, and more or better trim- 
mings. In the other case there will be relatively more 
labor with a consequent saving in the cost of material 
and trimmings.* 



Again: 

A scale of rates paid in shops in which efficiency is the 
keynote, in which the operator is able to work steadily 
through the day without waste of time, with up-to-date 
machinery and appliances, and amid sanitary surround- 
ings, may be fully adequate to enable the workers to earn 
good wages in that shop. The same schedule of piece 
rates may prove totally inadequate for operators of equal 
skill working in a shop where lack of system on the part 
of the management results in frequent interruptions and 
stoppages of work. . . .f 

It may be that the small shop is economically the more 
efficient unit for the manufacture of the popular-priced 
garment and that instead of its being regarded as an. 
outlaw to be dealt with summarily, it should be legiti- 
matized and regulated. 

I am not here attempting a complete analysis of this 

♦Bulletin 146, Bureau of Labor Statistics, Department of Labor, 

P. 193. 

t Bulletin 146, p. 293. 






THE NEW YORK CLOAK BUSINESS 99 

technical problem of the industry. It is a problem that 
sooner or later must be thoroughly studied and solved. 
I have presented it, however, with sufficient concreteness 
to give to the student or the casual reader some picture 
of the business difficulties inherent in the running of this 
industry. Now, add to the business difficulties the high- 
strung temperament of the workers on both sides — I 
mean, of course, to include the "boss" as well as the 
operators — and it becomes apparent that to bring law 
and order into this industry was to make the attempt in 
perhaps the most difficult and most handicapped of all 
the young industries. Compare this industry with 
industries where large plants are required, large invest- 
ments of capital are necessary before there can be a 
beginning. Take the steel, the coal, any of the mining 
industries, for example. The problem is obviously much 
simpler. 

The Protocol undertook to better industrial conditions 
by rational and peaceable methods. Upon the sanitary 
side it succeeded. Upon the business side, while it did 
not wholly fail, it did not meet the expectations of those 
who framed it. The hope of the decent manufacturer 
in 1910 that the Protocol would make the high-grade 
manufacturer's position more certain has not yet ma- 
tured. Under the rigorous enforcement of standards by 
the Association of which he is a member, he is obliged 
to observe standards while his competitor outside of the 



ioo LAW AND ORDER IN INDUSTRY 

Association runs the risk only of the occasional strike. 
What then? Shall we go back to the anarchy of 1909? 

Beginning with 1913, as we shall see, the strain upon 
the officers on both sides became so great that it broke 
them down. 






CHAPTER IX 

THE CRISIS OF 1913 

The failure to bring about equality of standards in 
the industry developed an anti-Protocol party within the 
ranks of the manufacturers, Just as the business man 
blames the national administration in power for bad 
business conditions, so the business men in the industry 
cast upon the Protocol entire responsibility for all their 
business troubles. 

In the union ranks, a stronger anti-Protocol party 
flourished. Remember, the Protocol had not promised 
the millennium, but it had been very much over-praised. 
Too much had been promised in advance and the trum- 
pets of victory had sounded too long after the march was 
over. The feeling that the employers had been whipped 
into submission was freely encouraged. The Protocol 
was in truth a successful outcome for the union; but it 
was far from a defeat for the employers. The policy 
implicit in the Protocol, the spirit back of its institutions, 
the peace methods — all these were without meaning, 
indeed, had not been translated over to the great masses 
of the working people. The process of educating them 
to its true value had not yet been devised, and the hand- 



102 LAW AND ORDER IN INDUSTRY 

ful of men in the union who understood its philosophy 
felt genuinely that time and experience were the only 
true processes of education. There were, in addition, 
outside influences at work. 

You cannot build up a working creed for ten years and 
then suddenly throw it to the winds. The employers 
were the enemies of the workers. Each belonged to a 
separate class. There could be no peace between them. 
There must be eternal warfare. The klassenkampf 
was here, right here in the cloak industry. The Protocol? 
Yes, it was a temporary truce to give us more power 
with which ultimately to smite the employer and so 
triumph over the whole capitalistic tribe. Our employers 
are our masters, we are poor slaves. Does the Protocol 
say you cannot strike? Then a plague upon it; you are 
" slaves of the Protocol." 

Two groups developed within the union itself; one, the 
men who had spent their lives in sacrifice for the working 
people and who regarded the Protocol as a great advance, 
who knew from actual experience the inutility of the 
strike and the ineffectiveness of violence, who, to meet 
the pressing and obvious needs of to-day, studied ex- 
isting business factors and tried to meet them squarely 
and looked to a better order of society, yes, Socialism 
itself, as an ultimate but far distant goal to be reached 
only after years of slow preparation in which the Pro- 
tocol itself might play a part. These were the Con- 



THE CRISIS OF 1913 103 

servatives. The other group were — shall we call them? — 
the Inpatients. Quite opposed to all the methods, the 
institutions, the philosophy of the parliamentarians or 
the jurists, they saw in all their schemes and plans noth- 
ing but spiders' webs in which to ensnare them, and who, 
genuinely enough, believed that the joinder of the leaders 
of the union with the leaders of the employers' association 
in a common task was, so far as the union leaders were 
concerned, a traitorous surrender of their class and a 
betrayal of vital principles. How can you dine with 
your enemy? How make agreements with him that you 
must keep? You are but postponing the Great Day of 
our Triumph. You sold our precious birthright when you 
bade us keep forever to a system of arbitration! By 
such a process you have weakened the cause of labor. 

So ran the song. The journal of the International 
body was The Ladies' Garment Worker. The journal of 
the Joint Board was the New Post. The Joint Board 
represented the Cloakmakers' Union of New York City. 
The International was the parent body for all the cloak- 
makers' locals the country over. Between the editor of 
the New Post (supported by the Joint Board) and the 
editor of the Garment Worker developed a sharp journal- 
istic controversy, with the advantage to the New Post 
that the latter, a cheap weekly, reached practically 
every member of the union, while the former, published 
monthly, reached only a comparative few. Here are 



104 LAW AND ORDER IN INDUSTRY 

illustrations of the manner of debate and the points in 
controversy: In January, 19 13, the Garment Worker 
contained the following editorial (p. 13) : 

A Word with Our " Irreconcilables" 

We have had occasion more than once to refer to the 
discontented and irreconcilable element in our organiza- 
tion. Every organization has this element. By their 
discontent with prevailing conditions they often do a 
useful service. By clamoring for more than we have they 
only illustrate a law of human progress. But at times 
this element becomes dangerous, particularly when they 
fall into the hands of demagogues, who in order to main- 
tain their position in the organization, pander to their 
prejudices, stir up discontent, and magnify it, and try to 
force the organization to demand from the employer the 
impossible. . . . 

In the Garment Worker for November, 1912, under the 
heading of " Everything or Nothing," after referring to 
the difficulties which the union had experienced in the 
past in organizing the workers of the trade, in that "our 
people insisted upon either getting everything they 
desired in a union shop, or no union shop at all," and 
observing that "it is impossible to achieve all that we 
want, the best we can get is some kind of a suitable 
compromise for which our people would not stand," 
the editor continues: "The result was that in the past 
we got nothing" He finds that the success of the general 



THE CRISIS OF 1913 105 

strike of 1910 came from the fact that "our people were 
wise enough to accept what we considered to be a suit- 
able compromise' ' and points out with pride that "after 
two years the Organization is much stronger and on a 
more solid footing than it was two years ago." He 
then prophesies that "success in the future will largely 
depend upon our ability to accept a part of what we 
demand and keep on clamoring for more." The "old 
story of either l everything or nothing'" being revived, 
he complains: " We have been told lately that unless the 
union will get all that is coming to us, . . . the union 
will remain a ' comedy and a fraud.' ... we have 
pointed out on several occasions the danger of urging . . . 
what is physically impossible to get. It has been our weak- 
ness in the past to promise our people more than it was 
possible to get for them." He refers to the then pending 
agitation against the Protocol as "a pernicious and dan- 
gerous form of agitation and if successful will lead to the 
destruction of the Union. Especially in a trade like ours, 
with such a huge immigration, with so many garment 
workers outside of it, working under much inferior con- 
ditions, . . . leakages of either one form or another" are 
bound to occur "... to carry on an agitation amongst 
our people, that unless we can stop all leakages the 
union is worthless, is practically the worst thing which 
can be done, especially when this agitation is carried on 
by responsible officers of the union." 



106 LAW AND ORDER IN INDUSTRY 

In reciting the history of this agitation in his report 
to the International Ladies' Garment Workers' Union 
in the Cleveland Convention, June, 1914, the President 
said that "a crusade was started against the Proto- 
col .. . and against those who ventured to hold that the 
Protocol had brought to the cloakmakers improvements 
and advantages. All sorts of grievances against the 
Association were unearthed. Every petty case that a 
business agent with common sense could easily settle was 
made into a general issue." 

As we shall see later, this agitation brought to a focus 
in 191 5 the so-called "discharge issue." The foresight of 
the union President in issuing the warning is apparent 
from the following quotation: 

A hue and cry was raised that all active union men 
were being discharged, notwithstanding the evidence 
afforded by the records that in three years less than 
five hundred employees had been discharged, and of 
these a large number were reinstated. Such exaggerated 
reports were persistently spread until belief in their 
veracity became almost general.* 

The description of the President of the attacks upon the 
manufacturers in the official organ of the Joint Board is 
significant. 

. . . the official organ of the Joint Board, on the one 

* Report and Proceedings — Twelfth Convention of the International 
Ladies* Garment Workers' Union, p. 16. 



THE CRISIS OF 1913 107 

hand, attacked the manufacturers, and, on the other, 
published Industrialist and Syndicalist articles, em- 
phasizing the workers' abstract rights and declaring 
them to be justified, even when they are glaringly un- 
justified.* 

He refers to the fact that this agitation had " inflamed the 
minds of the cloakmakers, who for the last two years 
have had bad seasons and very little work" and that 
several times the officers of the International had brought 
to the attention of the Joint Board "that it was not a 
question of justice and rights in the abstract, but rather 
one of possibility of achievement." He says: " being 
irritable and disappointed by reason of troubles and 
difficulties for which the Union was not responsible, 
the workers' minds were not open to logic and reason, 
especially when the logic and reason came from the inter- 
national officers, who are widely known for their con- 
servatism and moderation." f 

Here, then, we have conflict between the experienced 
leaders who went through the strike of 1910 and the newer 
element in the union, who were at once seeking to over- 
throw the Conservatives and the Protocol. Contests 
of this sort are usual in political affairs and are accepted 
as part of the process of education by which men arrive 
at sound policies. But while this conflict of opinion was 

* Report and Proceedings — Twelfth Convention of the International 
Ladies' Garment Workers' Union, p. 16. 



108 LAW AND ORDER IN INDUSTRY 

raging within the union, the industry was suffering. 
The Chief Clerk for the employers' association once made 
up a chart which showed the direct effect upon the tem- 
perature of the industry of this difficulty in the blood. 
The more heated the debate, the more frequent the 
shop strikes. In other words, the more articles were 
written against the Protocol, read by the workers, the 
greater the difficulty of preserving order in the in- 
dustry. 

By January, 1913, the fever reached its height. A 
certain shop broke the law and went on strike. Upon 
appeal to the Chief Clerk for the union, the manufactur- 
ers received no relief and when the Chief Clerk was in- 
formed that an appeal would be made to the International, 
he disputed the power of the national body to intervene. 
In effect he said that the " Joint Board was the substance 
of the union and the International the shadow." He 
was not so far wrong as a statement of the fact, but as a 
statement of the legal responsibility of the International 
he was in error. By February, 1913, the Board of Arbitra- 
tion had decided that the International was responsible 
for the preservation of order in the industry and for the 
observance of its contracts by the Joint Board. 

In September, 19 13, another strike occurred in an 
Association shop. On appeal to the Chief Clerk no relief 
was secured. Soon the strikers were found picketing the 
shop, though the union had not authorized any strike. 



THE CRISIS OF 1913 109 

The Chief Clerk for the union defended both the strike 
and the picketing. Upon appeal to the International, 
the International found itself unable to abate the strike. 
Again the Association appealed to the Board of Arbitra- 
tion. That Board sat for two days, October 3d and 
4th, 1 913, reviewed the entire history of the transac- 
tions during 191 2 and 1913, rebuked the Chief Clerk of 
the Joint Board for his conduct, rebuked the Interna- 
tional officers for failing to intervene, made strong 
admonition to both parties that law and order must be 
maintained under the Protocol, and admonished the 
union with reference to the articles that appeared at- 
tacking the Protocol, that this kind of "miseducation" 
must cease. After this utterance from the Board of 
Arbitration the Association felt called upon, in a com- 
munication to the union, to review the decision of the 
Board made the previous February and to bring the 
seriousness of the situation to the attention of the Inter- 
national. In this communication the Association said 

The situation is a most critical one. The conditions 
disclosed by the record presented to the Board of Arbi- 
tration in February last have become more aggravated 
during the past eight months. There has been a com- 
plete breaking down of that relationship of " mutual 
respect and confidence," which the Board of Arbitration 
says is essential to the life of the Protocol, and there has 
been not only a complete failure to educate the members 
of your Union to an understanding of the difficulties of 






no LAW AND ORDER IN INDUSTRY 



the problem presented, but, through the columns of the 
Neue Post and through the work of some of the represent- 
atives of the Joint Board, there has been (as the Board 
of Arbitration now finds) a campaign of "misedu cation." 

We must now — after three years of experience with 
the Protocol — call upon you for direct and specific an- 
swers to the following questions: 

First. Does the International Ladies' Garment Work- 
ers' Union accept the interpretation of its relationship 
to the Protocol as laid down by the Board of Arbitration? 

Second. Does it accept the obligations imposed upon 
the parties to the Protocol as laid down by the Board of 
Arbitration specifically with reference to 

(a) The conduct of the Grievance Board; 

(b) The conduct of the representatives of the Union 
who deal directly with the Association; 

(c) The use of the columns of the Neue Post and other 
organs reaching the members of the Union? 

Third. Does the International accept the decision 
made by the Board of Arbitration, that while the power 
resides in either party to the Protocol to abrogate it, that 
it does not lie in either side to suspend its operations, and 
that " picketing" and calling men " scabs" and "strike 
breakers," and suffering local shop strikes, must cease, 
and that the entire power of the Joint Board and the 
International must be used to discipline the members 
and prevent the recurrence of such situations? 

Fourth. Has the International the power actually to 
do the things it has undertaken to do? 

Fifth. Is it willing, if it has the power? 

Upon your answer to these questions depends, in our 
judgment, the continuance of the Protocol as a working 
instrument between us. 

As this letter is sent by direction of the Executive 



THE CRISIS OF 1913 III 

Committee of the Association, we must ask you for an 
answer that is approved by the General Executive Board 
of your organization. 

At this time the Association had no idea of breaking off 
relations with the union. It sought merely to secure the 
carrying on of the institutions created by the Protocol. 
The communication, however, was seized upon by the 
then Chief Clerk of the union and his adherents as the 
basis for further agitation against the Protocol. The en- 
tire anti-Protocol sentiment in the union rallied about 
the Chief Clerk as its leader, until, on the 16th of 
December, 1913, the Association was obliged to write the 
union: 

We are informed that Dr. Hourwich is to continue to 
represent the Joint Board in their dealings with our 
Association under the Protocol. We regret to be obliged 
to ask you to designate someone else with whom we may 
have official relations. Dr. Hourwich has publicly 
charged our Association with having offered him an 
inducement to work for the Association; has publicly 
charged us with having connived to warp the statistical 
inquiry of the Board of Arbitration; has attacked the 
good faith of our Association, the Board of Arbitration, 
the Board of Grievances, your International Officers and 
your Joint Board, and stated in the presence of the 
Board of Arbitration that, in view of its recent decisions, 
he could not work in harmony either with the Board or 
with us. We recognize fully the right of each party to the 
Protocol freely to select its own agents, but since it is of 
the essence of the Protocol that there shall be mutual 



112 LAW AND ORDER IN INDUSTRY 

respect in the daily dealings of the parties, it is obvious 
that neither party can have dealings with a representa- 
tive of the other, whose deliberate purpose it is to create 
distrust and ultimately destroy the Protocol. Since we 
desire fully to perform our part of the duty of upholding 
the Protocol and abiding by the decisions of the Board 
of Arbitration, we prefer not to be obliged to deal with 
one who has both insulted us and assumed an attitude of 
dictatorship in the industry. 

We regret exceedingly, therefore, to be obliged to ask 
you to designate someone with whom we may continue 
business relations, so that the daily business may be con- 
ducted without friction. 

Copies of this communication having been sent to the 
International Union, it sought the advice of leading 
trades unionists of the entire country, including Samuel 
Gompers and John Mitchell, and after careful review of 
the entire situation they advised the International Union 
to withdraw its guarantee of the Protocol unless the local 
board removed the then Chief Clerk. 

On the 7th of January, 1914, the International officers 
wrote the manufacturers as follows, in response to their 
demand that the Protocol be enforced: 

. . . you are well acquainted with our opinion as to 
the fitness of Dr. Hourwich as mediator and concilia- 
tor. . . . 

With our best intentions to continue the Protocol, we 
must admit that at this time we are powerless to take a 
hand in this controversy. . . . 



THE CRISIS OF 1913 1 13 

To this the Association replied: 

The Clerks of the Board of Grievances are, as you 
know, officers of the Board of Grievances, who must 
follow and obey decisions of the Board of Arbitration, 
who must be mediators and conciliators, and must, of 
necessity, work together. It seems to us, not as a matter 
of personality, but as a matter of principle involving the 
very life of the Protocol, that either side has the right to 
call the attention of the other to the actual fact that one 
of the Clerks is an impossible person in the situation. 

Under the advice of Messrs. Gompers, Mitchell and 
other leading trade unionists, the General Executive 
Board of the International adopted a resolution recogniz- 
ing the decision of the Board of Arbitration of the pre- 
vious February to the effect that the International 
was guarantor for the Joint Board in its dealings with 
the manufacturers' association, and that under the de- 
cision of the Board of Arbitration of October the guar- 
antee implied joint responsibility and joint cooperation 
of the officers of the International Union with repre- 
sentatives of the Joint Board in carrying out the provi- 
sions of the Protocol and 

Whereas, The present Chief Clerk, Dr. Hourwich, 
who since he attached his signature to this arrangement 
made by the Joint Board of Arbitration has persistently 
and systematically attacked the policies of the Interna- 
tional Union and openly denounced its officers as the 
agents of the Manufacturers' Association and has in 



114 LAW AND ORDER IN INDUSTRY 

every way tried to discredit them before our members and 
thus brought about a condition of affairs whereby he has 
made it impossible for the International officers to work 
in cooperation and harmony with him; and 

Whereas, His policies are radically and fundamentally 
opposed to the policies and methods heretofore pursued 
by the International officers; and 

Whereas, It is the firm belief of the G. E. B. that the 
methods pursued by Dr. Hourwich are detrimental to the 
best interests of the members of our organization; there- 
fore, be it 

Resolved, That the Joint Board of the Cloak and 
Skirt Makers' Unions be informed that under the clerk- 
ship and guidance of Dr. Hourwich the International 
Union cannot remain the guarantor for the Protocol. 

The adoption of these resolutions for the time being only 
increased the storm. It hailed epithets and rained 
slander. The East Side press was in all the glory of a 
strike campaign, though no strike had actually been 
called. One daily set itself out to discredit another. 
Through it all the learned doctor's controversial skill 
was the wonder of the day. He was the natural hero of 
the irreconcilables. He laid the President of the Inter- 
national low, he laid its Secretary low, he drove out the 
lawyer for the International. These were the three men 
who in 1 910 were hailed as demi-gods by the cloakmakers 
and carried upon their shoulders in triumph. 

The Federal Commission on Industrial Relations, 
studying collective bargaining in practice, came to the 



THE CRISIS OF 1913 115 

city and held public hearings in the City Hall, and came 
to the conclusion that the Protocol had brought great 
good to the industry. For weeks the industry was on the 
verge of a strike. Everyone interested trembled lest 
1910 be repeated and there be a relapse into anarchy. 
The industry lay like a sick patient tossing about, while 
the doctors disputed and argued. Finally, the Board of 
Arbitration held a session (January n, 1914). After 
hearing and conferring with the three parties — the 
manufacturers, the Joint Board, and the International 
officers — and having been advised by the manufacturers 
that they intended to give notice of the termination of 
the Protocol, the Board publicly announced that the 
Chief Clerk could avert Ti the certainty of great suffering 
for tens of thousands of men, women and children" by 
withdrawing from the situation. Its recommendation of 
a truce of eight days was accepted by both parties, and 
before the eight days had expired the Chief Clerk 
resigned. 

Six months later, at the Convention in Cleveland of 
the International Union, where every local in the coun- 
try was represented, the matter was thoroughly thrashed 
out. The International officers were fully supported in 
their action by the vote of the convention. The resolu- 
tions are important: 

Whereas, Dr. Hourwich together with some irre- 
sponsible persons carried on an agitation against the 



Ii6 LAW AND ORDER IN INDUSTRY 

officers of the International Union, accusing them of 
treason and of being agents of the Cloak Manufacturers' 
Association, because at their Quarterly Meeting held on 
December 20, 19 13, they decided to inform the Joint 
Board, its affiliated locals and its members that " under 
the clerkship and guidance of Dr. Hourwich, the Inter- 
national Union cannot remain the guarantor for the 
Protocol" and because of this decision Dr. Hourwich 
and the said persons accused the International officers of 
having helped the manufacturers in an alleged attempt 
to dictate to the Union who its representatives shall be, 
and 

Whereas, From the evidence and statements pre- 
sented at this convention the delegates are convinced 
that Dr. Hourwich has for some time prior to the date 
of the receipt of the said letter done everything in his 
power to provoke strife, dissension and ill will both 
inside the organization, between the members and the 
officers, as well as outside the organization, between the 
Manufacturers' Association and the Union and that he 
further tried to induce the Cloak Makers' Union of 
New York to abrogate the Protocol and, after having 
utterly failed in his attempts, he assumed an attitude 
and pursued a policy in his dealings with the manufac- 
turers, calculated to provoke them and compel them to 
take the initiative to abrogate the Protocol and has 
raised the fictitious issue that the manufacturers' associa- 
tion tried to dictate to the Union who its representatives 
shall be and thereby brought about a condition of affairs 
which made a conflict between the Union and the Associa- 
tion almost inevitable, and 

Whereas, It is the judgment of the delegates to this 
convention that to undertake a fight with employers 
because of Dr. Hourwich would have been a senseless act 



THE CRISIS OF 1913 1 17 

of folly and a crime against the interest and welfare of 
the workers engaged in the cloak trade in particular and 
against the International Union in general, therefore be it 
Resolved, That the delegates to this Twelfth Conven- 
tion go on record as expressing their approval of the 
action of the General Executive Board for having through 
their efforts succeeded in restraining and preventing the 
Cloak and Skirt Makers' Unions from entering into an 
unnecessary, unwarranted and useless fight with the 
Manufacturers' Protective Association and congratulates 
the entire membership because the International officers 
were able to maintain the integrity of the International 
Union so that it can carry on in the future the work of 
solidifying the rank and file of our workers and thereby 
promote their interest under the authority of the Inter- 
national Ladies' Garment Workers' Union.* 

In addition, the convention went on record as deciding 
unanimously: 

That until some other form of agreement has been 
presented to us which will better safeguard and protect 
the interests and welfare of our members we are in favor 
of the Protocol agreement! 

Sufficient time has elapsed to review the crisis of 1913 
and to make some deductions therefrom in the light of 
the experience. The Chief Clerk of the union, around 
whom centered the storm, was a man of fine intellect, 

* Report and Proceedings, Twelfth Convention of the International 
Ladies' Garment Workers' Union, p. 204. 
t Id., p. 182. 



Ii8 LAW AND ORDER IN INDUSTRY 

broad culture, a lawyer, a statistician, an economist, a 
journalist of international repute, and it was common 
knowledge that he did not in fact accept the philosophy 
of the anti-Protocolists. He believed in the Protocol and 
believed in it as an instrument for preserving law and 
order. He conceived of it, however, as substituting in 
place of the strike and lockout a system of industrial 
courts in which all controversial matters could be dis- 
posed of, with a lawyer fighting the cause of principals, 
case by case. He believed that the existing institutions 
were inadequate. The Board of Arbitration, as he saw 
it, had failed fully to supply a medium for litigation. 
The Board of Grievances, evenly balanced in number, 
was to his mind always subject to deadlock and con- 
sequently could not function properly, and in the imme- 
diate contact between the two Chief Clerks he saw not 
an opportunity for the exercise of great diplomacy and 
conciliation, but a matching of wit and skill and the 
pitting of the power of one organization against the 
other. He was, indeed, ready to join in revising the 
constitution of the industry by installing what to him 
seemed to be a more complete system of judicature. 
The real agitation against the Protocol had begun long 
before his arrival in New York. He became, however, 
the natural leader of the anti-Protocolists in the union. 
In emphasizing the judicature points in the Protocol 
problem, he made the mistake that others have made of 



THE CRISIS OF 1913 119 

ignoring the fundamental business factors in the indus- 
try, and in addition accepted the theory of continuous 
antagonism of interest between the workers and the 
manufacturers as a working hypothesis. In endeavoring 
to make the juridical and parliamentary methods cover 
the daily running of factories, he had failed to learn the 
lessons which the breaking down of such systems in 
political life, when applied to similar problems, had 
taught both laymen and lawyers. Of course, in his 
theory of the justifiable shop strike and picketing he 
was utterly unsound, and when this theory came up for 
analytical examination by the Board of Arbitration it 
was easily shattered. Indeed, the basis for the Board's 
decision on this phase of Protocol law was to be found 
in the precedent established by the doctor himself. 
Upon a previous occasion when the shop strike fever 
broke and abatement of the strikes could not be readily 
secured, after repeated demands, the President of the 
Employers' Association issued an order to the clerks of 
the Association that none of them should attend to any 
grievances until the shop strikes were abated. The 
Chief Clerk for the union (the doctor himself) charged 
the President with having taken the law in his own 
hands, and since the Protocol was to establish law and 
order this was an offense. The Board of Arbitration 
sustained the doctor and rebuked the President of the 
Employers' Association. In substance they said: "You 



120 LAW AND ORDER IN INDUSTRY 

believed you were justified and we can understand how 
you were aggravated, but we must emphasize that so 
long as the Protocol is in existence neither side must 
take the law into its own hands. While either party may 
terminate the Protocol at any time, until it is terminated 
it is the law of the industry and neither party may sus- 
pend its operation." This point scored by the doctor 
against the employers was turned upon him when, in 
effect, he suspended the Protocol in suffering and de- 
fending shop strikes. 

Comparing now the trying experiences of 1913 with 
the two other experiences we have studied — the Board of 
Sanitary Control and the Chicago clothing situation — we 
observe the following facts in the New York experience: 

The absence of uniform, rational, cooperative move- 
ment — the very essence of success in the Board of 
Sanitary Control and Chicago experiences. We find a 
failure to take complete measure of the business factors 
in the industry. We find a definite and organized oppo- 
sition within the ranks of one of the parties against the 
scheme itself. We find that though the leaders of the 
International have profited by experience, their lessons 
had not yet sunk into the minds of their constituents. 
There had been a complete failure to educate the workers 
to the meaning of the Protocol, and as a final result the 
officers of experience, indeed, the men who had brought 
about the Protocol in 191 o, were overthrown. 



THE CRISIS OF 1913 12 1 

We may say, upon the basis of this study, that Hy- 
potheses I and II which we suggested in Chapter VII 
are fully sustained by the New York experience. 

On the other hand, when we examine with care the 
proceedings of the International Convention in the 
succeeding June, we find that after six months of re- 
flection and discussion the conservative representatives 
of the union are sustained and the convention denounces 
all those who were guilty of raising false issues and who 
sought "to provoke them (the manufacturers) ... to 
abrogate the Protocol." There is progress toward an 
understanding and realization of the value of the in- 
stitutions, but a process of education fearfully expensive 
to the industry itself. To destroy the tendency towards 
Syndicalism in the industry brought the industry to the 
very brink of a strike, resulted in eliminating from the 
situation men who had enjoyed confidence as leaders of 
the entire union, who themselves possessed a fund of 
valuable practical knowledge and experience. Ap- 
parently, the rule of progress is three steps forward, then 
two back, and a fresh start all over again. The Board of 
Arbitration wholly justifies itself as an existing institu- 
tion. It focuses attention upon error, and though it is 
without power to enforce its decisions, it remedies by 
applying clear reason to confusion. Yet if there had 
| been no publicity, no intervention of national labor 
leaders, no hearings before the Industrial Relations 



122 LAW AND ORDER IN INDUSTRY 

Commission, the Board of Arbitration itself would have 
fallen. The Protocol proves its tenacity in times of great 
crises. As we shall see, though it was terminated in 191 5 
when another crisis arose, it came into immediate being 
again; and though the failures are known in more or less 
complete detail to employers and local unions in Boston, 
Philadelphia and Chicago, Protocol institutions are 
established in these cities, the language of the instru- 
ment itself is copied almost verbatim, and its plan is 
carried over to four or five other branches of the needle 
industries. Indeed, as this chapter is written,* Chicago 
cloak manufacturers are following the example of New 
York, and Boston is renewing its agreement, utilizing the 
latest experience of its sister city in the East. 

In short, when both are brought to the brink of dis- 
ruption and are face to face with the possibility of rever- 
sion to the anarchical conditions preceding 1910, they ac- 
cept the principle that the methods of Law and Order are 
after all best for securing Justice and Welfare. Between 
crises, however, we find a lack of that fiber and dis- 
cipline necessary to the daily observance of law and 
order. There is no police department and no sheriff. 
Public opinion comes into play only when there is an 
acute situation. The lessons of self-government are 
learned through suffering, and the training of the people 
interested is at the expense of the industry itself. The 
* September, 1915. 



THE CRISIS OF 1913 123 

student of municipal reform — indeed, the student of 
democratic institutions generally — will find in the fail- 
ures of this industrial development much of similarity 
to the failures of democratic government generally. 



CHAPTER X 

1914 — THE COMMITTEE ON IMMEDIATE ACTION 



On the union side the men who carried upon their 
shoulders the heavy problems of the workers, gave their 
entire time to the work. It was their business. On the 
employers' side, however, the leaders were men whose 
time was devoted primarily to the management of the 
single-headed institutions described in Chapter VIII. 
This voluntary contribution of service by employers 
in an industry of such strain had its limitations. The 
men who in 1910 were propelled forward by their vision 
and faith, made unusual sacrifices. It could not last. 
One of the expensive results of the crisis of 1913 was the 
departing from activity on both sides of leaders who 
had had experience in dealing with each other. With 
these men went a fund of knowledge and a background 
purchased at the expense of great energy. Human 
memory is a slate on which the chalk marks rub out all 
too easily; only those lessons engraved with hot and 
sharp needles of suffering remain. New leaders bring 
new vitality, and if they utilize and value the expe- 
riences of their seniors in service and have some reverence 
for the lessons of the past, they can do much to move 

124 






1914— THE COMMITTEE ON IMMEDIATE ACTION 125 

things forward; but if, with the enthusiasm of youth, 
they throw overboard the accumulated experience and 
wisdom of years and resolve to get all things new and 
fresh for themselves, they will but make the age-old 
blunder of Aladdin's wife. There is not much difference 
in outward semblance between tablets of bicarbonate of 
soda and bichloride of mercury. The inexperienced may 
easily take one in place of the other. Why is education so 
costly? Why do we not learn by others' experience? 
Dr. Dewey, in "Schools of To-morrow," believes that 
this is the only true process of education. "Learn by 
doing." It is one of the striking features of the New 
York experience that education on both sides is acquired 
by the expensive repetition of failures. 

Following the resignation of the doctor, the Board of 
Arbitration, taking into account the feelings and senti- 
ments on both sides, and the strain upon employers of 
work upon the Board of Grievances, offered as an experi- 
ment the device of the "Committee on Immediate 
Action." There had been much cry of deadlocks arising 
from the evenly-balanced constituency of the Board of 
Grievances, and though the fear proved, upon subse- 
quent examination,* to be wholly unfounded, it did in 
fact create distrust and seemed upon the surface to have 
some basis. With some hesitancy and as an experiment, 

* See Bulletin 144, Bureau of Labor Statistics, U. S. Department of 
Labor. 



126 LAW AND ORDER IN INDUSTRY 

the Board of Arbitration adopted the following rule under 
which this new Protocol piece of machinery was created: 

30. Committee on Immediate Action. If the chief 
clerks shall, after due effort to conciliate, fail to agree in 
any case arising under the Protocol, they shall, together 
with a third impartial person (chosen hereunder by both 
parties) constitute a committee on immediate action, 
which committee shall decide all matters submitted by the 
chief clerks, except such matters as involve Protocol law. 

The committee on immediate action shall, in all in- 
stances, aid in the work of mediating and conciliating and 
in the enforcement of decisions made. 

Either party may appeal to the board of arbitration, 
direct from any award made by said committee on 
immediate action, but the award shall stand pending the 
determination of the appeal. 

But the committee on immediate action shall in no 
case take up the complaint of the workers wherein a 
stoppage of work exists until those stopping work shall 
have returned to work. 

31. The parties shall immediately agree upon the 
third impartial person provided for in the preceding rule. 
In case the parties shall be unable to agree upon such 
third impartial person, he shall be selected by a com- 
mittee consisting of the following: 

(a) The president of the American Federation of Labor. 

(b) The head of the Political Science Department of 
Columbia University. 

(c) The chairman of the Committee on Arbitration of 
the Chamber of Commerce of the State of New York. 

The person so selected shall receive adequate com- 
pensation, to be borne equally by both parties. 



1914— THE COMMITTEE ON IMMEDIATE ACTION 127 

32. Each of the parties shall designate its own chief 
clerk, who shall have power to designate a first deputy. 
Each chief clerk shall have power to request his first 
deputy to act for him as a member of the committee on 
immediate action, if circumstances prevent his personal 
attendance.* 

This machine worked as it was expected to work. 
During the following year, through the work of the com- 
mittee, ordinary situations were handled with expedition 
and with good result, and to those fundamental issues 
that had been latent in the situation for some time the 
Committee on Immediate Action acted like a poultice 
plaster — it brought the inflammation to the surface. 
Whether this was good or bad or timely, remains to be 
determined. Under the rule, though the committee is, 
in theory, a trial board of three, two of the members are 
frankly partisans; indeed, act at once as advocates and as 
judges. In case of deadlock, therefore, the burden of 
final decision falls upon the single chairman. It was 
carefully provided that this committee had no power to 
make Protocol law. Its power was limited to deciding 
controverted questions of fact. It was during the exist- 
ence of the Committee on Immediate Action that the 
" discharge issue," so called, arose and brought about 
the experiences of 1914 and 1915. These experiences 
were pregnant with lessons for the participants. Perhaps 
recital of them will help others. 

* Proceedings of the Board of Arbitration, Jan. 24, 1914- 






CHAPTER XI 

HIRING AND DISCHARGING 

"Now I shall lose my job" was the first exclamation 
from an unconscious workman carried out of a subway 
cave-in to a neighboring place of relief. The impulse 
to retain the place which provides a means of support is 
an impulse strong enough to make reason and judgment 
give way before it. For the man with wife and child 
dependent upon his earnings to philosophize concerning 
the alternate effectiveness of parliamentary and juridical 
methods as compared with anarchy is difficult. The 
burning thought in mind is "How shall my wife and 
child be fed?" Contact with daily situations on the 
part of the social reformer creates a natural impatience 
with existing conditions. With more than enough to go 
round in the world and with many overfed, starving 
people are to be found wherever one turns. This impulse 
for security of tenure took on acute form in the cloak 
industry. Small wonder, when we bear in mind the 
characteristic temper of the people engaged in it — great 
ambition, nervous worry, and a keen desire for better 
things generally. The impulse for security of tenure 
is not limited to the day or week worker. We know 

128 






HIRING AND DISCHARGING 129 

perfectly well that it operates in everyone who works 
and lives by his labor. The civil service employee, who 
never feels certain that his salary will not, in the interest 
of public economy, be cut or his position wholly abol- 
ished; the doctor, the lawyer, the literary man whose 
income is not within his control, dependent very con- 
siderably on chance; and the minister, who never knows 
when devotion to principle will find, in his expression of 
views not entirely consistent with the notions of his 
congregation, the necessity for decision between main- 
taining self-respect and maintaining a position. Nor 
will any but those ignorant of business conditions assume 
that the average employer is free from the worry, where 
entire savings are locked up in business at the risk of 
financial panic, bank or market slump; and if for security 
there be investment in real estate or stock and bonds, let 
those who know the effect of the present war upon both 
income and values speak upon the precariousness of 
returns from such holdings. The bankruptcy court tells 
abundantly the tale of the rich man grown poor over- 
night, rarely by his own fault. The larger the business, 
the greater the liabilities and the greater the risk at 
which the assets are held. Like the colleges, we should 
all like to be amply endowed, for service free from 
financial worry. 

Uncertainty of income, insecurity of reward for 
service and relative impermanence of employment is to 



130 LAW AND ORDER IN INDUSTRY 

those who are dependent upon their work for their 
living, something always in front of the eyes. Yet as 
industry is conducted to-day and likely to be conducted 
for some time to come, security of tenure and certainty 
of income must be for hundreds of thousands only a 
distant aim. It is a rare enterprise which can fix def- 
initely the number of people which it can employ from 
year to year and provide continuous employment for 
them. In an industry so seasonal in character as the 
manufacture of women's wear, so fluctuating in the 
demands, it is one of the cruel business factors that 
large numbers of people must constantly be taken on 
and laid off. No business in this industry could stand 
the strain of supporting the peak-load for the entire 
year. 

But there is another phase of this unemployment 
problem. Quite apart from the incidents of casuality of 
employment due to the seasonal nature of the business is 
the necessary unemployment arising from demands for 
new and greater efficiency in the work. In the study 
of the needs of the industry for better industrial train- 
ing, the United States Department of Labor concludes: 
"The industry faces the possibility of reaching the upper 
limits of development at an early date unless a supply 
of better-trained workers can be assured." * This con- 

* Bulletin 147, Bureau of Labor Statistics, Department of Labor, 
p. 181. 



HIRING AND DISCHARGING 131 

elusion is so important that I have ventured to quote 
it in full in a footnote.* 

* What the industry needs is a new class of workers — designers, cut- 
ters, tailors, etc. — who are able not only to adjust themselves to rapidly 
changing styles and turn readily and skillfully from the construction 
of one kind of garment to another, but also to originate and execute new 
ideas. 

A second and equally important need is for workers possessing a higher 
degree of artistic temperament and appreciation, since the possession of 
the artistic quality of style means the difference between success and 
failure. The decision as to the lines of a garment is too often left to 
men who have no conception of the rules of design or the principles of 
art; the responsibility for choosing and adapting color schemes is fre- 
quently intrusted to those who lack even a rudimentary understanding 
of color harmony; and the details of ornamentation are often worked 
out with no more intelligence and esthetic appreciation than is required 
to manipulate a patchwork puzzle. Too much reliance is placed on 
rules of thumb and formulas whose meaning and derivation are quite 
beyond the comprehension of those who resort to them. 

The obvious remedy, and the only remedy, for these conditions is 
more and better training for the workers. The requisite skill in work- 
manship, artistic appreciation, and creative ability can be secured in 
no other way. It is equally obvious that very little can be accomplished 
in these directions by attempting to transform adult workers. Some- 
thing can be done that is worth while, perhaps, but the hope of the in- 
dustry is in the training of younger workers than those who constitute 
the vast majority in this industry. An effort must be made to find all 
those who are still young enough to be susceptible to the influence of 
training and to concentrate attention upon them. 

The industry has undergone a significant evolution during the past 
10 or 15 years, because of the tremendous increase in the demand for 
ready-made garments. The perfection of manufacturing processes, 
the development of factory organization, and the economies of large scale 
production have now made available for the great mass of the people 
garments of quality and serviceability that 25 years ago were within 
the reach of only the wealthy. It is very difficult to realize the enor- 
mous expansion in the volume of business that has taken place in recent 
years. The ready-made garment made its first appeal to the wearer of 
cheap clothing, and the product was inferior to that of the custom tailor 



132 LAW AND ORDER IN INDUSTRY 

The demand of the industry for workers of a higher and 
better training is one of its immediately crying needs, 
and it is obvious that to meet this requirement there is 
inevitable a constant elimination of lesser-trained for 
better- trained workers. " Very little can be accomplished 
in these directions by attempting to transform adult 
workers" is the verdict of the expert for the government. 

Now, turn to the other side. The underlying feeling, 
if not principle, of union organization is solidarity. Its 
rallying cry is "All for one and one for all." Through it 
it has built up its membership. The very raison d'etre 
of its existence is that it is organized for the protection 
of even the poorest of its members. It must be against 

both in materials and workmanship. With the development of the 
industry, however, the manufacturer has not only improved his product 
but he has steadily striven for higher and higher classes of customers. 
Some of the best designers and mechanics in the business are now in 
the employ of the better-grade cloak and suit manufacturers. The 
product of some of these factories contains materials of as high quality 
as the market affords, and the operatives who make the garments repre- 
sent skill of as high grade as any at the command of the custom tailor. 
Since the differences in quality of material and workmanship have been 
so largely done away with, practically the only things that the custom 
tailor can supply his patron that can not be had from the manufacturer 
of ready-made garments are a certain exclusiveness and a kind of per- 
sonal service. Even the advantage of exclusiveness is of short duration, 
in many cases, for the enterprising designer readily and promptly copies 
new ideas that give promise of becoming popular. 

This invasion of the field of the medium and high-priced garment, 
however, has created a real demand for workers with higher degrees of 
skill, and more of them. The industry faces the possibility of reaching 
the upper limits of development at an early date unless a supply of 
better-trained workers can be assured. 



HIRING AND DISCHARGING 133 

the creation of any " aristocracy" in the industry among 
its members. This, though it accepts a minimum scale, 
recognizes fully that higher-skilled workers will receive 
a higher rate of pay, accepts a piece-rate basis in which 
compensation? is affected by differences in skill and 
reward. Indeed, the Protocol freely recognized and 
adopted this principle of discrimination among workers 
and freedom of selection on the basis of skill. Linked 
in the same paragraph with the preferential union 
shop is the provision that "since there are differences 
in degrees of skill among those employed in the trade, 
employers shall have freedom of selection as between 
one union man and another, and shall not be confined 
to any list, nor bound to follow any prescribed order 
whatever." 

In addition is the factor of shop discipline. Before 
the days of the trades union, shop discipline was main- 
tained through government by the employer. He was 
the general of the army. His was the voice that decided. 
The abuse of the power he held imperiously led ultimately 
to the organization of the trades union. Suddenly he 
finds confronting him a vigorous, militant organization 
of working people. He cannot, in theory, question the 
right of his workers to organize and deal with him col- 
lectively. He cannot question the right of all the workers 
in the industry to organize. He himself organizes with 
other employers. He cannot question the right of these 



134 LAW AND ORDER IN INDUSTRY 

organizations to work to raise the standards of living 
conditions for the workers, and he must freely concede 
the great good such organizations have done. But the 
discipline of the factory must still be maintained. The 
raising of standards and providing for machinery for 
redressing grievances has not obviated the necessity 
of esprit de corps in the factory. No factory can be run 
without it. In the old days the employer got the dis- 
cipline either through winning over the workers to a 
sense of personal loyalty to him or by the sheer brutal 
exercise of the power to discharge; but for the moment 
the important fact to be considered is that the disci- 
pline was secured. 

Now arrives the union on the scene, organizes the 
people in the shop, breaks down the shop feeling and sub- 
stitutes an industrial feeling of comradeship, eliminates 
the sense both of loyalty to and fear of the employer. 
What is substituted in place of the older methods for 
securing shop discipline? The discipline must be se- 
cured and maintained. Acceptance of the principle of 
collective bargaining does not imply the surrender by 
the employer of the power to maintain discipline nor the 
power to maintain efficiency. Though this may be mis- 
understood by workers generally, and though they may 
believe that through collective bargaining they can find 
that security of tenure so much to be desired, the power 
to maintain efficiency and discipline must still be left 



HIRING AND DISCHARGING 135 

with the employer. It is the checking of the abuse of 
the power only that, in the present order of society, 
unions may insist upon. The unemployment problem 
is not a shop problem — it is a community problem. To 
keep individual workers in any shop or even in any in- 
dustry, will not solve the problem. 



CHAPTER XII 

I914-1915. THE CLASH 

In Chapter X we analyzed the opposing tendencies in 
both directions. In the latter part of 1914, before these 
tendencies came to a clash, in reviewing the institutions 
of the Protocol and the prospects of the future, I said: 

As one who has been on deck, may I suggest that the 
great big problem of the hour is — How can the national 
movement for efficiency and economy be united with the 
national movement for democracy in industry? How 
can the discipline and efficiency of the shop be main- 
tained, yet the workers be granted a larger share in the 
management of industry? No greater problem faces 
this or any other country at the moment, though it may 
be overshadowed for the time being by the smoke of the 
battlefield and the thin, small voice "be hushed in the 
noise of the drums." * 

The government meteorological service watches the 
development of storm centers and fixes with remarkably 
definite accuracy the point and time of contact between 
impending storms. So accurate is its information and 

* National Society for the Promotion of Industrial Education, Bulletin 
No. 20. Proceedings Eighth Annual Meeting, Richmond, Virginia, 
December 9-12, 1914, p. 131. 

136 



1914-1915. THE CLASH 137 

forecast that sailors will not go out upon the Great Lakes 
or the oceans when storm warnings are given. We need 
a "storm service" for industrial difficulties. In 1914 
storm signals were out in the cloak industry. 

The chairman of the Committee on Immediate Action, 
though successful in averting conflict in something like 
ninety per cent of the cases, soon found himself in dif- 
ficulty. His duty was to apply existing law to facts. 
He did not find that in the "hire and discharge" issue 
there was a law sufficiently explicit for him to apply. He 
himself became convinced that the rule had not yet been 
devised which he could apply to such cases. So far as the 
law outside of the industry was concerned, as established 
by the law courts, there was no doubt. A Kansas statute 
made it illegal to discharge men for belonging to a union. 
When its constitutionality was attacked, the United 
States Supreme Court held that it was unconstitutional. 
The basis of the prevailing opinion is that, since the 
employee in the case was an employee hired "at will" 
and therefore could himself leave at any time, the em- 
ployer was free to discharge him at any time; and since 
the employer was free to discharge, he could discharge 
for any or no reason, and therefore could discharge him 
upon the ground that he belonged to a union. "Yes," 
held the minority, "where the hiring is at will neither 
party is bound for any definite period and therefore may 
terminate the relation at any time; but it does not follow 



138 LAW AND ORDER IN INDUSTRY 

that the discharge may be based upon any reason. If 
the discharge is because the worker belongs to the union, 
it may be against the public interest, just as it may be 
against the public interest if he is discharged because he 
belongs to the militia, and we cannot say that the de- 
termination of what constitutes the public interest in 
such directions is not for the State." The minority 
judges said upon this score: 

There is nothing in the statute now under considera- 
tion which prevents an employer from discharging one 
in his service at his will. The question now presented is, 
May an employer, as a condition of present or future 
employment, require an employee to agree that he will 
not exercise the privilege of becoming a member of a 
labor union, should he see fit to do so? In my opinion, 
the cases are entirely different, and the decision of the 
questions controlled by different principles. The right 
to join labor unions is undisputed, and has been the sub- 
ject of frequent affirmation in judicial opinions. Acting 
within their legal rights, such associations are as legiti- 
mate as any organization of citizens formed to promote 
their common interest. They are organized under the 
laws of many states, by virtue of express statutes passed 
for that purpose, and, being legal, and acting within 
their constitutional rights, the right to join them, as 
against coercive action to the contrary, may be the 
legitimate subject of protection in the exercise of the 
police authority of the states. This statute, passed in the 
exercise of that particular authority called the police 
power, the limitations of which no court has yet under- 
taken precisely to define, has for its avowed purpose the 



1914-1915. THE CLASH 139 

protection of the exercise of a legal right, by preventing 
an employer from depriving the employee of it as a 
condition of obtaining employment. I see no reason 
why a state may not, if it chooses, protect this right, as 
well as other legal rights. . . . 

There is a real, and not a fanciful, distinction between 
the exercise of the right to discharge at will and the 
imposition of a requirement that the employee, as a 
condition of employment, shall make a particular agree- 
ment to forego a legal right. The agreement may be, or 
may be declared to be, against public policy, although 
the right of discharge remains. When a man is dis- 
charged, the employer exercises his right to declare such 
action necessary because of the exigencies of his business, 
or as the result of his judgment for other reasons sufficient 
to himself. When he makes a stipulation of the char- 
acter here involved essential to future employment, he 
is not exercising a right to discharge, and may not wish 
to discharge the employee when, at a subsequent time, 
the prohibited act is done. What is in fact accomplished, 
is that the one engaging to work, who may wish to pre- 
serve an independent right of action, as a condition of 
employment, is coerced to the signing of such an agree- 
ment against his will, perhaps impelled by the necessi- 
ties of his situation. 

The majority judges, quoting the opinion of Mr. Justice 
Harlan in the Adair case (208 U. S. 161) said: 

While, as already suggested, the right of liberty and 
property guaranteed by the Constitution against dep- 
rivation without due process of law is subject to such 
reasonable restraints as the common good or the general 



140 LAW AND ORDER IN INDUSTRY 

welfare may require, it is not within the functions of 
government — at least, in the absence of contract be- 
tween the parties — to compel any person in the course of 
his business and against his will to accept or retain the 
personal services of another, or to compel any person, 
against his will, to perform personal services for another. 
The right of a person to sell his labor upon such terms as 
he deems proper is, in its essence, the same as the right 
of the purchaser of labor to prescribe the conditions upon 
which he will accept such labor from the person offering 
to sell it. So the right of the employee to quit the service 
of the employer, for whatever reason, is the same as the 
right of the employer, for whatever reason, to dispense 
with the services of such employee. It was the legal 
right of the defendant Adair — however unwise such a 
course might have been — to discharge Coppage (the 
employee in that case) because of his being a member of 
a labor organization, as it was the legal right of Coppage, 
if he saw fit to do so, — however unwise such a course on 
his part might have been, — to quit the service in which 
he was engaged, because the defendant employed some 
persons who were not members of a labor organization. 
In all such particulars the employer and the employee 
have equality of right, and any legislation that disturbs 
that equality is an arbitrary interference with the liberty 
of contract, which no government can legally justify 
in a free land* 

Thus we find judges of the highest court in the land unit- 
ing in agreement that it is a corollary of the principle 
of human liberty that where the worker is free to leave 
at any time, the employer is equally free to let him go, 
* Coppage v. Kansas, 236 U. S. 1. 



1914-1915. THE CLASH 141 

the exception of the minority judges being based solely 
upon the ground that if the employer would keep the 
worker but for the man's membership in the union, 
there is underlying this kind of discharge an infringement 
of the liberty of the worker, in that he is prevented from 
joining a union — thus the constitutional basis for legis- 
lative enactment upon the subject. 

In another case the union was sued for conspiracy by a 
former member, claiming that he had been discharged 
by reason of the request of the union. The decision of 
the court in effect was a statement to the complainant 
that since he was an employee at will and could leave at 
any time, the employer could discharge him at any time. 
"That he discharged you because the union requested 
it gives you no cause of action. You never had a per- 
manent right to your job; therefore, you could not lose 
it." Thus the law of the courts is clear. The principle 
of liberty of contract is applied equally to employer and 
to worker. "If you are free to go at any time, your 
employer is free to let you go at any time." * 

The Protocol did not change the "hiring at will" 
relationship between individual employer and individual 
worker. Except later by agreement in the specific 
cases of a few week workers, there was no term of em- 

* Any man, in the absence of a contract to work a definite time, is 
held in Roddy v. United Mine Workers, 41 Okla. 621, 139 Pac. 126, 
L. R. A. 191 5 D, 789, to have a right to quit whenever he chooses, 
for any reason satisfactory to him, or without any reason. 



142 LAW AND ORDER IN INDUSTRY 

ployment, and it was the practice for workers to leave 
even at the height of the season to seek new employ- 
ment, if they could better their positions. While in 
some small shops where the workers were relatives and 
friends of the employer, it might be true that employees 
continued during the slack season, playing cards or 
otherwise amusing themselves club- fashion in the factory 
while waiting for work, this was not true in the industry 
generally. It was not practicable in plants of ioo or 
200 employees. 

The chairman of the Committee on Immediate Action, 
recognizing the gravity of this conflict between both 
parties to the Protocol, himself presented the issue to 
the Board of Grievances for determination. In the fac- 
tory of Nathan Schuss, the employer had laid off 52 
men at the end of the season. He had had in his employ 
a foreman who was about to go into partnership with 
somebody else. This foreman had been with the con- 
cern for twelve years. During the latter part of his 
administration, the employer found that a large portion 
of his product had been returned by customers as im- 
perfectly made. In one instance an entire bill of $1 ,200.00 
had been returned upon the ground of poor workman- 
ship. In discharging the foreman, he discovered that a 
very considerable number of men in the department were 
either relatives or friends of the foreman. The foreman 
having announced that he was going to begin his own 



1914-1915. THE CLASH 143 

factory, the employer decided that he would reorganize 
the department entirely. He claimed the right to dis- 
charge such of his employees as he chose at the end of 
the season and to reemploy such of them as he should 
think proper, or to fail to reemploy such as he might 
not wish to reemploy. The union charged that this act 
in itself constituted "a direct present violation of the 
Protocol"; that after the worker was hired and retained, 
after trial, he had a right to the position "until such time 
as the employer remains in the same business, and the 
employee is not (affirmatively) guilty of any misconduct, 
and has not become incompetent to perform his work." 
This situation having been presented to the impartial 
chairman, he certified "that the issues presented in 
these cases are not the kind that were intended to be 
passed on by him., that he is not clothed with adequate 
power to decide them, and he shrinks from exercising a 
prerogative not clearly conferred upon him." In sub- 
mitting the problem to the Board of Grievances, the 
chairman made the following suggestion: 

The issues submitted herein relate primarily to the 
division of power between the employers and their 
association and the workers and their union. They 
belong to the class of cases that are in the highest degree 
provocative and calculated to promote strife. They 
cannot be settled by either side forcing its own interest 
to the disregard of the interest of the other. A true 
solution is only possible if both interests are recognized 



144 LAW AND ORDER IN INDUSTRY 

and their divergent lines are made to converge. This 
can be better done by thinking than by fighting; by 
ingenuity, by invention, by construction, rather than by 
force. In the present instance, the interest of employers 
seems to center on securing of mobility, economy, and 
efficiency in the selection of their working force; while 
that of the union centers around protection against 
discrimination and loss of power. It does not appear that 
these two interests are incompatible or irreconcilable, 
and it is believed that an earnest effort to find a solution 
in mutual good faith and good feeling may be expected to 
give a working solution. 

The parties deadlocked and the matter went to the Board 
of Arbitration.* It was thrashed out in December, 1914, 
before the full Board. In the course of the argument, 
counsel for the union said: 

In regard to retaining men, we absolutely militate 
against the principle of recognizing merit as a ground for 
retention, as a ground for preference over the man that 
is less skilled, and we say this, that this is the principle 
upon which our organization rests, and with which it will 
have to stand or to fall, and that is the principle that the 
organization is not here in order to allow the so-called 
free play of nature or competitive forces, which will 
pick out twenty thousand men out of fifty thousand 
men, or women for that matter, and secure them con- 
stant, permanent and lucrative employment and leave 
the thirty thousand other men and women to smaller 
remuneration during seasons, and to no earnings of any 
kind, and starvation, after season, f 

* Louis D. Brandeis, Hamilton Holt, William O. Thompson. 
| Proceedings, Board of Arbitration, December 19, 1914, p. 84. 



1914-1915. THE CLASH 145 

Again: 

I do not know whether the Board fully appreciates the 
importance of these questions, and I want to impress 
upon you that, as far as we are concerned, it is not 
merely a question of substantial relief that we demand, 
but for us it is, and let us be perfectly plain and frank 
about it, a question of the existence or non-existence of 
the Protocol and of our established relations with our 
employers. . . . 

In other words, as far as we are concerned, and I 
cannot make it too plain, it is the question of the life or 
death of the Protocol.* 

This issue, thus forced to the front, was accepted in 
the same seriousness by the manufacturers. Indeed, 
as both sides saw it, the discharge issue meant, unsolved, 
the life or death of the Protocol. The name "discharge 
issue " was a misnomer. It implied that the employers 
desired entire abandonment of the policy of redress of 
grievances that had been in force for five years and that 
they wished the free exercise of their legal rights to dis- 
charge at will, without review. As matter of fact, they 
were ready to review any discharge where a real griev- 
ance existed or was asserted. The real issue was, What 
is a grievance? At the time of signing the Protocol the 
"grievances" in mind were those commonly accepted 
as such by employers and employees generally. It was 

* Proceedings, Board of Arbitration, December 19, 1914, pp. 107, 108, 
no. 



146 LAW AND ORDER IN INDUSTRY 

not suspected that in time the mere act of discharge in 
itself would be regarded as a grievance. Quite apart 
from the law of the situation, the termination at will of 
an employment which has no time limit was not looked 
upon as something morally wrong. The underlying 
theory of the union's position in 191 5 was, in truth, 
that by virtue of retention for a period of more than 
two weeks, the worker acquired a status in the shop. 

Two of the investigators for the Federal Industrial 
Relations Commission agree that in cases of strike the 
workmen "feel that they have a property interest in 
their jobs, and that other workmen who take their 
places are fit subjects for abuse, ridicule and violence.* 
"They want the jobs which they think are theirs. In 
order that they may get the jobs, it is necessary to pre- 
vent others from taking them." f Again, "to the union 
man, the union means something more than a machine 
to maintain fair wages and working conditions. It means 
an agency for securing employment, if employment is to 
be had in his particular craft. The union man pays 
dues into his union for protection." J "The aim of the 
union is to have a monopoly of work in a particular 
trade." § Now it was this precise issue that in the 

* Report on the Colorado Strike, George P. West, p. 103; Report on 
Bridge and Structural Ironworkers, Luke Grant, p. 109. 
t Luke Grant: Id., pp. 109-110. 
% Luke Grant: Id., p. 134. 
§ Luke Grant: Id., p. 135. 



1914-1915. THE CLASH 147 

cloak industry was fought out in 19 10 under the title of 
"the closed shop." It was precisely this monopoly that 
the employers would not assent to. And if we refer back 
(ante, p. 21) to the proffer of the "preferential union 
shop" we will find that one of its essential elements was 
that not only should the union be open to all workers in 
the trade, but that the employer should have the utmost 
"freedom of selection." In 191 5, the issue, mark you, 
was not over the substitution of a non-union man for a 
union man, but the substitution of one union man for 
another, or by reduction of staff the substitution of none 
in place of the men laid off. This point of view of union 
men is to be distinguished from the aim at security of 
tenure discussed in Chapter XI. The latter is a common 
and a justifiable aim, but it recognizes that so long as 
industry is run by employers as administrators and the 
administrative function requires for its exercise the 
freedom to decide — the freedom to choose, a decision 
made bona fide by the employer should not be reversed, 
even if it result in misfortune to the worker. To turn 
over to a tribunal general review of the exercise of 
administrative power is to run industry by tribunals. 
Some day we may be able to create a judicial system 
adequate to review all administrative acts, but it is not 
yet in sight. No tribunal could be invented to-day that 
could function in such a capacity in a large industry. 
If the employee had a status, it is clear that he could snap 



148 LAW AND ORDER IN INDUSTRY 

his fingers at discipline and need not care about the 
efficiency of his work. And in an industry so complex, so 
full of inherent difficulties as the cloak industry, so 
utterly without tests of efficiency upon which judicial 
review could be based, the policy contended for by the 
union would have destroyed the industry. The em- 
ployers so believed. They believed that so long as they 
were charged with the duties of administrators, it was a 
corollary of the principle of liberty that they should 
have the necessary freedom to decide. They regarded it, 
therefore, as much a matter of principle to them as their 
fight in 1910 over the closed shop. On the other hand, it 
was quite obvious that the union sentiment upon this 
subject was so strong that no group of leaders could have 
agreed upon modification of its position without losing 
the confidence of the membership. To them also it was a 
matter of principle. When counsel for the union said in 
effect: "The union is here to stand for all its members; 
by this we stand or fall," he was expressing truly the 
voice of the union. 

Here, then, was conflict of principles, such conflict as 
makes for war, international and civil. The North says, 
"You may not treat men as property." The South says, 
"We have done so under the Constitution; we shall con- 
tinue to do so hereafter as matter of right." War re- 
sults. One European nation says, "The self-interest of a 
nation is higher than a treaty of neutrality." Another 



1914-1915. THE CLASH 149 

says, "A treaty is a treaty, to be observed at any cost." 
War results. In international relations our only estab- 
lished method for deciding such conflicts of principle is 
by war. In 19 15 the generally accepted method for 
deciding similar conflicts in industry is by force. Says 
the Erectors' Association, "We will not grant you the 
closed shop." Says the union, "We must have it; it is 
essential to our life." There being no other solution 
apparent, there is war — murder, anarchy, culminating 
finally in the dynamite outrages and the MacNamara 
convictions. Say the Colorado operators, "We will not 
deal with your union." Say the miners, "You must, for 
it is our very life, social, political, industrial; all depends 
upon it." Then follows war, murder, the breaking down 
of civil government, with its culmination in the Ludlow 
killings. The world stands aghast, yet with more or 
less complacency pays the price (as it is doing on the 
battlefields of Europe) and accepts the solution of force 
as the only way of "practical men." 

To the student of judicature, it all seems stupid, for 
great moral issues are settled by debate both in courts of 
law and in parliaments, and progress is made even 
through error and failure. The rights of men are defined 
by process of reasoning, decision, criticism, reversal, 
decision. Take the whole present trend of the law on 
social questions — how changed it is from what it was 
half a century ago. Only a decade ago, the United 



ISO LAW AND ORDER IN INDUSTRY 

States Supreme Court was criticised as the resting place 
of old men of obsolete economic views; to-day its deci- 
sions sustaining the " essential human rights" of men are 
quoted by every social reformer. So to the lawyer, the 
gravity of the issue does not make him despair of its 
solution by the processes of reason, and he accepts 
temporary defeat of the principle itself, for he knows that 
in the end the right will triumph by this process. The 
minority becomes the majority view sooner than the 
public suspects — if the minority view is the sound one. 
The recorded opinion of the minority judge is read and 
re-read and when its truth becomes clear, spreads over 
and conquers the field of error.* The same rule applies to 
legislation. The protests of this year's minority are the 
controlling view of next year's majority. 

How can force accomplish an equivalent result? 
The conflict of principles is not determined. Right does 
not become right because superior force strengthens 
wrong. It may be beaten down for the time being, but 
" truth crushed to earth will rise again." So the conclu- 
sion is inevitable that though "many instances might be 
cited in the industrial world, where the use of physical 
force has for a time won advantage for the side that has 
used it. Such gains, however, are temporary and do not 
make for permanent industrial peace. . . . Force may 
subjugate one side or the other in an industrial dispute, 
* See Abbot: " Justice and the Modern Lawyer." 



1914-1915. THE CLASH 151 

but it will not remove discontent. It will not establish 
justice. When one side is all-powerful and the other 
side is subservient, there is sure to be injustice. Where 
there is injustice, there will be discontent." * 

The advocates of collective bargaining, in pressing 
their method forward as the way to industrial peace, 
fail, however, to make sufficient allowance for the fact 
that latent in all industrial situations are grave moral 
issues still unsolved, — principles not yet defined; grave 
issues like the ones dramatically arising in the cloak 
industry in 191 o, 1914 and 191 5 and asserting them- 
selves in the structural iron trades and in the Colorado 
mines as in the cloak industry in New York. Moreover, 
in industrial matters these moral issues are of the most 
elementary nature; — we are yet in the kindergarten 
stage of education upon this branch of our ethics. Mere 
" bargaining" will not settle such matters; mere com- 
promise, negotiation, mediation, conciliation. These 
fail, as they did in 1910, 1914 and 1915 in the cloak in- 
dustry, as they did in the structural iron and coal in- 
dustries. They must fail. How can it be otherwise? 
Shall either side sacrifice its convictions? The world's 
charter of liberties is made up of the sacrifices for, not 
of, convictions. It may be true that so far as political 
liberty is concerned, revolution was necessary, and we 

♦Report on Bridge and Structural Ironworkers, by Luke Grant, 
P- 139. 



152 LAW AND ORDER IN INDUSTRY 

are to-day enjoying the fruits of the revolutionists 9 
sacrifices. But revolution in industry, as we have seen, 
does not and cannot make for real progress, and if it 
does not, who shall say that either union or employers' 
association, acting under joint agreement, shall surrender 
convictions honestly believed in? Far better were it 
that all Protocols — all trade agreements — should go 
than that men shall consciously compromise what they 
believe to be their principles. Shall, then, the alternative 
be— for either side — Compromise of Principle or Con- 
test of Force? 



CHAPTER XIII 



<<i 



1915. THE BOARD OF ARBITRATION. WHAT IS "FAIR AND 
REASONABLE'? 

If "bargaining" fails, what then? Under the Protocol 
both sides were committed to the submission to the 
existing Board of Arbitration for judicial determination 
of just such controversies as these. For nearly five years 
this method had been employed successfully. The Board 
had made all of its decisions unanimously and all of its 
decisions had been accepted by both parties. The 
serious action of the Board in January, 1914, in urging the 
representative of the union to resign — probably one of 
the most remarkable recommendations ever made in a 
labor controversy by an impartial tribunal — was ac- 
cepted by the union and, as we have seen, received ul- 
timately the official endorsement of the union convention. 
The Board had never lacked courage in meeting issues 
squarely, though it employed tact and diplomacy wher- 
ever it could and sought always to conciliate rather than 
to arbitrate. 

The decision of the Board of Arbitration on the "dis- 
charge" issue was handed down on the 21st of January, 
i9 x 5- It is quoted in full as Appendix C. After review- 

153 



154 LAW AND ORDER IN INDUSTRY 

ing the history of the Protocol and the purposes under- 
lying its making, the Board found that "of the essence 
of its existence, must be a spirit of fairness" and that 
it must be understood "as a basis for any proper inter- 
pretation of it and application of it that the parties 
desire by its provisions to promote, foster and develop 
square dealings in all of the relations of employer and 
employee; . . . that unreasonable acts or demands are 
not to be expected from either of the parties, and that 
anything of that nature would be in violation of the funda- 
mental purpose of the Protocol." That applying these 
basic principles, "the spirit of fairness and the rule of 
reason be used to determine whether or not an employee 
should be discharged; that the right of determining this 
must in the first instance rest with the employer, and 
that any employee, deeming himself unjustly treated, 
has a right to make his complaint and have his grievance 
heard in the regular manner." The Board then decides 
that in the hearing of discharge cases the parties ad- 
ministering the Protocol are "to look into all the facts 
and to apply the same standards for determining the 
case, thus eliminating the burden of proof from all 
consideration." The Board then said: "The power 
of administration, discipline and discharge, vested in 
the employer shall be exercised in a fair and reasonable 
manner, and if the propriety of the action is questioned, 
shall be subject to review." For the purpose of determin- 



THE BOARD OF ARBITRATION 155 

ing what is "fair and reasonable" the Board said that 
the spirit and purpose of the Protocol included the fol- 
lowing: 

First. To assist the employer in the peaceful and 
uninterrupted operation of his factory, in establishing 
and maintaining reasonable discipline, and in promoting 
such economy and efficiency of production as may be 
secured by cooperative effort. 

Second. To assist the Union in establishing the 
strength and efficiency of its organization, and raise the 
standard throughout the trade, to the end that the 
Union power may be adequate to carry the responsibili- 
ties and perform the duties imposed upon it by the 
Protocol, and to promote the cooperation and good will 
between the Union and the Association, so essential to 
the successful operation of the Protocol, and to the 
solution of the problems of the industry. 

Third. Subject to the foregoing provisions, to assist 
the individual worker in obtaining such security and 
continuity in his employment, such equity in the dis- 
tribution of work and such fairness of general treatment 
and of conditions as may be possible arid practicable, 
having regard to the unavoidable fluctuations and 
exigencies of the work, and the imperfections and limita- 
tions of ordinary human nature by which this enor- 
mously difficult industry must be administered. 

The Board then went on to discuss the fundamental 
problems of the industry — the matters of standardiza- 
tion of prices, the enforcement of standards throughout 
the industry, and the need for devising ways and means 



156 LAW AND ORDER IN INDUSTRY 

to release the energies and the time of those now engaged 
in the disposition of individual grievances for attention 
to the larger problems of the industry. 

It will be observed that the Board said nothing about 
the term of hiring except that the rights of the parties, 
unless modified by the Protocol, remained as they were 
before. The Board said: "It was not intended by the 
Protocol to change the relation of the employer to the 
employee, otherwise than as I (we) have stated and as is 
expressly stated in the Protocol. In all other respects 
the legal rights were to remain what they had been 
before." The Board, however, found that by signing 
the Protocol, the union "relinquished its right to secure 
by strike more than it was getting, and there was sub- 
stituted for that relinquished power of strike, the powers 
created under this agreement, which constitutes a govern- 
ment to control the relations between employer and 
employee"; and that the Protocol had substituted for 
the strike as a means by which the union might enforce 
"the fair, just and reasonable exercise by the employer 
of his legal rights in regard to the administration of 
business, and in regard to hiring and discharging/ ' 
the machinery for redressing grievances. 

It will be seen that the Board does not sustain the 
appeal of the union. It places its reliance upon the rule 
of "fair and reasonable" applied to the facts of each 
case as it arises, and gives to the union the right to re- 



THE BOARD OF ARBITRATION 157 

view every case where it feels aggrieved. It did not order 
the reinstatement of the Schuss workers. On the other 
hand — as became clearer with the lapse of time — the 
determination of what is "fair and reasonable" in the 
circumstances of the case could only be made with a 
clear, definite guiding principle as a base. With the 
underlying clash of philosophies of employment in the 
situation — the union fighting for one theory, the em- 
ployers for another — the decision of the Board of Arbitra- 
tion, as practically applied, meant inevitably a series of 
litigated test cases, through which might be evolved a 
guiding set of principles. The impartial chairman had 
no power to make "Protocol Law": therefore he could 
not begin the process of evolution. The decision of the 
Board of Arbitration, as we shall see later, did actually 
bring about further litigation. It came up for the con- 
sideration of an entirely new tribunal — the Mayor's 
Council of Conciliation (post, Chapter XV). The crea- 
tion of this Council and the circumstances leading up to 
it make in themselves an instructive chapter. 



CHAPTER XIV 

THE TERMINATION OE THE PROTOCOL 

Aeter the rendition of the decision of the Board of 
Arbitration, its lack of conclusiveness as a ruling prec- 
edent became more and more apparent as cases came 
before the impartial chairman. Issues arose in four 
distinct cases in which the union took the position that 
" regular" employees had been, by the Board's decision, 
granted substantial permanence of employment and the 
right to retention during the slack season, and that all 
who were primarily dependent upon the industry for 
their earnings must be regarded as such " regular" em- 
ployees. Another appeal was taken to the Board of 
Arbitration; several sessions were held, and the Board 
on the 5 th of February, 1915, again reiterated the rule 
of "fair and reasonable," directed that each question 
should be taken up as a question of fact, and left the 
parties with no more definite rule than it had announced 
before. Later conferences of both parties with the Board 
were pending when the crash came. 

It is quite likely that in the course of time, by bringing 
up case by case as a test, a code would have been de- 
veloped, clearly defining the rights of the parties. But 

158 



THE TERMINATION OF THE PROTOCOL 159 

the repeated litigations, coupled with bad business 
conditions generally and an increasing feeling on the 
part of the members of the manufacturers' association 
that they were being penalized and that the industry 
was being treated as an experiment station for society 
generally, instead of as a business, resulted this time in 
the creation of a strong anti-Protocol party in the man- 
ufacturers' group. Other causes contributed. There 
was in existence another manufacturers' association 
with which the union sought an agreement. This action 
the manufacturers believed was not in consonance with 
the spirit of the Protocol. After the 1st of January, 1915, 
there was enough tinder in the situation for a single 
spark to start a conflagration. 

On the third of May a stoppage of work occurred in 
one of the shops of the Association. (This was while 
the Board of Arbitration was still wrestling with the 
problem of hiring and discharge.) The usual complaint 
was sent to the union on that day and repeated during 
the following week. The two Chief Clerks ordered the 
people back to work. They returned to work and a 
second and a third time stopped. Picketing of the shop 
began, lasted for a week, and though repeated protest was 
made to the union, no relief was accorded. Later, 
when the facts became public, the counsel for the Inter- 
national Union accepted for his client frank responsibility 
for negligence in the premises, and careful examination 



160 LAW AND ORDER IN INDUSTRY 

then made demonstrated that the negligence was not 
willful nor deliberate. Several of the officers of the union 
had been indicted by the Grand Jury — (they were sub- 
sequently acquitted) — and the arrests following the 
indictment took place during the week of the strike and 
picketing in this particular shop. It is probably the 
fact that failure to give to the Association the redress to 
which it was entitled was due entirely to the distraction 
of the attention of the officers to this other matter. 

Coming at a time, however, when the relations be- 
tween the parties were so tense, this failure was the death 
of the Protocol. On the 17th of May, the Association 
wrote the union, reviewing the experiences of 19 13 and 
the action of the Board of Arbitration at that time * and 
stated: 

Within the past year, you have questioned the right 
of the employer to select his staff, to hire and discharge 
freely upon the basis of efficiency and economy, or dis- 
charge for insubordination in the shop. 

The Association in this letter stated that although the 
Board had decided that both the power of management 
and administration of discipline within the shop remained 
with the employer, as it was before the signing of the 
Protocol, the original contentions were revived, "making 
necessary more conferences, more litigation and more 
sessions of the Board of Arbitration." Reviewing the 
* See Chapter IX. 



THE TERMINATION OF THE PROTOCOL 161 

facts relating to the shop strike and picketing, the Asso- 
ciation said: 

This flagrant disregard officially of your duties and our 
rights, after repeated warning, gives us no alternative, 
except to regard your present conduct as an abandon- 
ment of the Protocol and a repudiation of its obligations. 
These matters have gone beyond the point of endurance. 
We see no sense in securing decisions of the Board of 
Arbitration if these decisions are ignored. . . . 

... we fail to see anything to be gained by further 
appeals or decisions of the Board of Arbitration or by 
conferences. 

We deeply regret that after nearly five years of effort 
to join in a cooperative work with you, we should now be 
obliged to come to these conclusions. 

The union replied, regretting that the Association had 
"not seen fit to state its position and intentions in a 
franker and more direct manner. " It contested the 
assertion of the Association that the union had "denied 
or are denying the right of the employer Ho select his 
staff, to hire and discharge freely upon the basis of 
efficiency and economy, or to discharge for insubordina- 
tion in the shop. ' " But it contended that the Board had 
decided "in clear and unmistakable language that the 
employers' right to discharge must be exercised in a just, 
fair and reasonable manner; that any worker deeming 
himself treated unreasonably and unjustly has the right 
to make complaint, and that all grievances of discharged 



162 LAW AND ORDER IN INDUSTRY 

workers must be investigated and adjusted on their 
merits." The union in this letter insisted that it was 
not they who questioned "the right of the employer to 
discharge his workers contrary to the decision of the 
Board of Arbitration," but that it was the Association 
which questioned "the right of a discharged worker to 
complain against an unfair discharge in clear defiance 
of the decision of the Board." The union took the posi- 
tion "that the workers are clearly entitled to a method 
of redress of their grievances based upon any acts of 
alleged unfairness and injustice on the part of the em- 
ployer in view of the fact that they are required to sur- 
render their only other instrument for the redress of 
such grievances, the right to strike." The union as- 
serted that it was ready "to defend this very reason- 
able position before the Board and is prepared to abide 
by the decision of the latter." It further stated: "That 
we should hold different views on the subjects of your 
communication is a position neither novel or striking. 
Disputes on various points have often arisen between 
our respective organizations, and the agreement between 
us provides for a method of settlement of such disputes. 
What is novel and striking in your communication is 
your expressed determination to withdraw the present 
disputes from the decision of the Board of Arbitration 
and to take their adjustment into your own hands." 
The union concludes by saying: 



THE TERMINATION OF THE PROTOCOL 163 

The Protocol gives each party the right to abrogate 
the instrument at will. We have not chosen to exercise 
that right, and we certainly cannot recognize your 
power to exercise that right for us and in our behalf. 
If your Association has decided to abrogate the Protocol, 
it must do so in its own behalf, taking all the respon- 
sibility for the act. 

It then called upon the Association definitely to state 
whether or not the communication meant that "your 
Association has chosen to abrogate the Protocol between 
us." To this, on the 20th of May, the Association re- 
plied: "Our letter was intended to convey to you in 
simple language that our mutual, official relations were 
severed and severed by your acts." "... we regard 
further conferences with your organization or sessions 
of the Board of Arbitration as useless. We shall not ask 
the gentlemen of the Board who have made so many 
sacrifices to spend more of their valuable time making 
decisions, which you admit now you cannot enforce 
upon your members, even in so simple a matter as 
picketing and shop strikes." 

With the termination of the Protocol, all of its in- 
stitutions fell — the Board of Arbitration, the Board of 
Sanitary Control,* the Board of Grievances, the Com- 
mittee on Immediate Action. The union believed that 
the termination of the Protocol, coming at the time it did, 

*This Board, notwithstanding, continued its work in the manner 
indicated in Chapter IV. 



164 LAW AND ORDER IN INDUSTRY 

was a deliberate attempt on the part of the manufacturers' 
association to destroy the union. Subsequent events 
showed clearly that this was not the intention of the 
manufacturers. They had been aggravated beyond 
measure. All of the efforts that had been made to de- 
velop constructive legislation were blocked by the " dis- 
charge issue" and the unrestrained shop strike. As a 
matter of fact, the manufacturers wanted to settle once 
and for all these two fundamental matters and to secure 
real peace through law and order. 

With the death of the Protocol, it seemed that the in- 
dustry would relapse into the old anarchical conditions 
of pre-Protocol days. The union immediately began 
preparations for a strike. It mobilized its forces, held 
great mass meetings, denounced the manufacturers, and 
a general strike similar to the 1910 strike seemed im- 
minent. During the interval there was more law and 
order in the shops than there had been at any one time 
in the previous five years. The union demonstrated 
completely its power of discipline in the hour of crisis. 
It instructed its members to refrain from strike until 
orders were given. On the other hand, the fear of whole- 
sale discharges if the employers were given the right of 
discharge without ready review was found to be unjusti- 
fied. Fewer people, in fact, were discharged at this 
particular time than at any other time. 

On the 28th of June, 1915, the union addressed to the 



THE TERMINATION OF THE PROTOCOL 165 

manufacturers' association a communication which, after 
reciting the pendency of various matters of wages and 
other issues before the Board of Arbitration and the fact 
that "the instruments through which our grievances 
have been settled and our mutual relations have been 
regulated for the past five years" have been destroyed, 
stated: 

. . . now our industry faces the grave question as to 
what is to take their place. 

The situation, as we view it, admits of but one answer: 
Either the employers and workers will get together on a 
fair and reasonable working agreement for at least the 
near future, or our industry will find itself involved in 
an embittered labor struggle, which may spell ruin for 
many manufacturers, and suffering and privation for 
tens of thousands of workers and many more thousands 
of persons, directly or indirectly dependent upon our 
industry. 

The workers fully realize their share of responsibility 
for such a public calamity, and are ready to make every 
reasonable effort to avert it. But the responsibility rests 
upon the manufacturers as fully as upon the workers. 

It proposed that, "In order to secure a complete and 
speedy adjustment of all disputes and to avoid any pro- 
longed and fruitless discussions and negotiations, . . . 
our respective contentions be forthwith submitted to a 
Committee or Board of unbiased persons under the 
presidency of Mr. Louis D. Brandeis, or Mayor Mitchel, 



166 LAW AND ORDER IN INDUSTRY 

or any other person of recognized standing in the com- 
munity." The Association responded, on July second, 
by saying, "We are willing to go before a Council of 
Conciliation, to be made up of disinterested and neutral 
parties, and to lay our case before them, with the under- 
standing that arbitrable questions may be left to a 
Board of Arbitration, to be subsequently formed, if 
necessary." This proposition was accepted by the union. 
In offering to submit its case to a disinterested tribunal 
the union accomplished a master stroke of diplomacy. It 
placed the Association in a position of apparently de- 
clining to accept the juridical method of adjustment of 
difficulties, after five years of experience. The communi- 
cation of June 28th, 191 5, by the union to the Association, 
is le grand triomphe of the Protocol experience. Face 
to face with the crisis, with grave issues involved, the 
union accepts as an alternative to the strike, the decision 
of a public body and the determination of public opinion 
intelligently exercised, for its guidance. If the Associa- 
tion was criticised for halting and for hedging about its 
acceptance with reservations as to non-arbitrable ques- 
tions, it will be recalled that there was involved a funda- 
mental principle, namely, the liberty of the manufacturer 
freely to select the workers in the establishment. This, 
to the manufacturers, seemed so vital that it fell within 
the scope of non-arbitrable matters. 
To select such a Council presented immediately a 



THE TERMINATION OF THE PROTOCOL 167 

task for both parties, and though relations between 
the two had been broken by the termination of the Pro- 
tocol, they were resumed for the purpose of agreeing 
upon the method of bringing the Council of Conciliation 
into being. 



CHAPTER XV 

THE MAYOR'S COUNCIL OF CONCILIATION 

The plan promptly assented to by both parties pro- 
vided for the creation of a Council of six, to be appointed 
by the Mayor of the city. This plan was approved by 
the Mayor and he immediately appointed as the members 
of the Council the leader of the Society for Ethical Cul- 
ture, a former judge of the United States Circuit Court 
of Appeals, a former dean of the Columbia Law School, 
the City Chamberlain, the former head of the Board 
of Arbitration, and the chairman of the Committee 
on Arbitration of the Chamber of Commerce.* The 
Council held twenty-one sessions, public and executive. 
The opening words of its chairman are significant: ". . . 
the appointment of this Mayor's Committee is an event 
of some importance in the history of New York. . . . 
twenty years ago a Mayor of New York would not have 
appointed a committee to assist the two parties in the 
removing of the causes of industrial friction. The fact 
that your Chief Executive officer deems it a part of his 

* Felix Adler, Walter C. Noyes, George W. Kirchwey, Henry Bruere, 
Louis D. Brandeis, Charles L. Bernheimer. Dr. Adler was chosen as 
chairman. 

168 



THE MAYOR'S COUNCIL OF CONCILIATION 169 

official duty to call upon a number of citizens for the 
purpose of tendering their friendly offices in this fashion 
indicates the new social note that is being struck in our 
politics. ..." In this address, the chairman described 
the functions of the Council. He said: ". . . we are not 
here to arbitrate; we are not here to decide. We are here 
on the part of the City, representing the community, to 
tender our friendly offices with a view to industrial peace. 
And . . . with a view to industrial progress. Yet, de- 
spite the fact that our function is purely that of sugges- 
tion and advice, there is a certain invisible authority 
lodged in this volunteer body; it represents a certain 
pressure, though it does not represent and is not equipped 
with coercive power. It is this distinction between 
power and pressure; and in this Committee, in a way, 
is lodged a certain pressure; that is, the pressure of the 
whole upon the part, the pressure of the whole City upon 
a certain fraction of citizenship of this town, the press- 
ure of a community that seeks peace and welfare upon 
that portion of the community in which peace and wel- 
fare are for the moment endangered. It is the pressure 
of the forces of integration in a community upon a point 
where disintegration is about to or possibly may set in." 
Let us stop for a moment to consider the significance of 
this thought. The old Board of Arbitration derived its 
powers from "the consent of the governed," that is, 
the employers' association and the union. It had no 



170 LAW AND ORDER IN INDUSTRY 

power of enforcing its decisions or judgments. When 
either party terminated the Protocol, the Board of Ar- 
bitration fell. If, in January, 1914, it found great efficacy 
in a mere recommendation to one of the parties, it was 
because at the moment of crisis the Board was environed 
by an aroused and informed public opinion. Unlike the 
Board, the Mayor's Council, though created upon the 
initiative of the parties in interest, owed them after its 
creation no duty whatsoever, save to render accurate, 
intelligent judgment and to employ such tact and con- 
sideration as would result in bringing about a new treaty 
of peace. On the other hand, it owed to the community 
a weightier duty — the duty to prevent strife, to find 
firmer solutions for existing issues and to create a better 
base for future relations. It brought to this task "the 
pressure of the entire community upon a part." The 
establishment of the Mayor's Council marks a real 
step forward in the invention of machinery for the solu- 
tion of industrial controversies. It represents the intelli- 
gently organized power of the community applied to the 
rational solution of an industrial crisis. It is public 
opinion based upon knowledge, ascertaining the facts, 
arriving at conclusions, and stating them in the name 
of the entire community. 

After it had rendered its findings, the New York 
TimeSy editorially commenting upon the work of the 
Council, said: 



THE MAYOR'S COUNCIL OF CONCILIATION 171 

Neither side can get on without the support of public 
opinion, and that will go to the side which comports 
itself most nearly in accord with the Council. The 
Protocol had its faults but it kept a sort of armed peace 
for five years. The new treaty possibly will surpass it, 
not only in endurance under stress, but perhaps in pro- 
ducing better relations than those of avowed hostility.* 

The Evening Post said: 

The city now has a permanent board of arbitration for 
all disputes between the Cloak Manufacturers' Associa- 
tion and the needlerworkers' unions. This points to the 
passing of the stage in which the public is a suppliant 
for peace, and to the acceptance by the disputants of the 
authority of the public to forbid war and to impose, in 
an impartial spirit, new terms of cooperation.! 

May we not say, as the executive head of the manu- 
facturers' association said, upon the announcement of 
the creation of the Council: "This is a better way of 
getting at the truth than a costly strike, which gets 
nowhere and settles nothing, and brings only violence 
and hatred in its train." % 

The first task to which the Council addressed itself, 
after giving both sides ample opportunity to present 
their claims and contentions was to settle the issues which 
were still pending before the Board of Arbitration. The 

* New York Times, August 7, 1915. 
^Evening Post, August 5, 1915. 
% New York Times, July 10, 1915. 



172 LAW AND ORDER IN INDUSTRY 

Council obtained this result by clearly formulating its 
own opinion, disregarding every statement that had gone 
before. The fundamental rule was thus stated by the 
Council: 

. . . the principle of industrial efficiency and that of 
respect for the essential human rights of the workers 
should always be applied jointly, priority being assigned 
to neither. Industrial efficiency may not be sacrificed 
to the interests of the workers, for how can it be to their 
interest to destroy the business on which they depend 
for a living, nor may efficiency be declared paramount to 
the human rights of the workers; for how in the long run 
can the industrial efficiency of a country be maintained 
if the human values of its workers are diminished or 
destroyed. The delicate adjustment required to recon- 
cile the two principles named must be made. Peace 
and progress depend upon complete loyalty in the effort 
to reconcile them * 

Applying this fundamental rule, the Council laid out a 
definite application of rights and obligations in the 
relationship between employers and workers. With 
reference to the freedom of the employer to make se- 
lection of workers, to hire and discharge, the Council 
laid down: 

i. Under the present competitive system, the principle 
of industrial efficiency requires that the employer shall 

* Findings and Recommendations of the Council of Conciliation, 
handed down July 23, 1915, and accepted by union and Association, 
August 4> io^S- 



THE MAYOR'S COUNCIL OF CONCILIATION 173 

be free and unhampered in the performance of the 
administrative functions which belong to him, and this 
must be taken to include: 

(a) That he is entirely free to select his employees at 
his discretion. 

(b) That he is free to discharge the incompetent, the 
insubordinate, the inefficient, those unsuited to the shop 
or those unfaithful to their obligations. 

(c) That he is free in good faith to reorganize his shop 
whenever in his judgment, the conditions of business 
should make it necessary for him to do so. 

(d) That he is free to assign work requiring a superior 
or special kind of skill to those employees who possess 
the requisite skill. 

With regard to the equal distribution of work and the 
"right to the job," the Council declared: 

(e) That while it is the dictate of common sense, as 
well as common humanity, in the slack season to dis- 
tribute work as far as possible equally among wage 
earners of the same level and character of skill, this 
practice cannot be held to imply the right to a permanent 
tenure of employment, either in a given shop or even in 
the industry as a whole. A clear distinction must be 
drawn between an ideal aim and a present right. 

The Council was not forgetful of the legitimate desire 
for security of tenure nor of the prime need for better 
regulation of employment in the industry, but it said: 
"A clear distinction must be drawn between an ideal 
aim and a present right" and explained: 



174 LAW AND ORDER IN INDUSTRY 

The constant fluctuations — the alternate expansions 
and contractions to which the cloak-making industry is 
so peculiarly subject, and its highly competitive char- 
acter, enforce this distinction. But an ideal aim is not, 
therefore, to be stigmatized as Utopian, nor does it 
exclude substantial approximations to it in the near 
future. Such approximations are within the scope of 
achievement, by means of earnest efforts to regularize 
employment and by such increase of wages as will secure 
an average adequate for the maintenance of a decent 
standard of living throughout the year. 

And it clinched the thought with this firm statement: 

The attempt, however, to impose the ideal of a per- 
manent tenure of employment upon the cloak-making 
industry in its present transitional stage is impracticable, 
calculated to produce needless irritation and injurious 
to all concerned.* 

When we lay the findings of the Mayor's Council 
side by side with the findings of the Board of Arbitra- 
tion (Appendix C), it will be seen that what is "fair and 
reasonable" is no longer in doubt. With all due regard 
for the legitimate aim towards greater security of tenure, 
the status and "permanent right to the job" theory is 
blasted by clear analysis and statement of the situation 
of both parties. The need for efficiency in the industry 
is emphasized, though efficiency is not to be forwarded 

* The full text of the Findings and Recommendations will be found 
in Appendix D. 









THE MAYOR'S COUNCIL OF CONCILIATION 175 

at the expense of "the essential human rights of the 
worker" — which are defined. The freedom of the em- 
ployer to decide, the recognition of his administrative 
function under the existing order of industry, is stated 
clearly and beyond misconstruction. In spirit and in 
fundamental purpose, the Board of Arbitration and the 
Council were in complete harmony. On the other hand, 
like many decisions of the courts, the decision of the 
Board of Arbitration required modification of statement 
and clarification. The Mayor's Council, in a sense, an 
appellate tribunal, with power to affirm, reverse or 
modify, did (without saying so) materially modify and 
clarify the statement of the rule by the Board of Arbi- 
tration. It may not be far wrong even now to say that it 
required the intervening period of time and the crisis 
itself to bring about such clarification of thought and 
statement. 

So was a great industrial conflict disposed of — not 
by force, not by compromise of principle, but in a forum 
of the parties' own making, by clear declaration of prin- 
ciple, so clear that its own inherent soundness compelled 
acceptance from both sides. 

Not only did the union accept the findings of the 
Mayor's Council as applied to the cloak situation in 
New York, but a few months later made them the basis 
of Protocol agreements in Boston and Chicago.* It 

* See the issues of Women's Wear for September 22 and 27, 1915. 



176 LAW AND ORDER IN INDUSTRY 

is not too soon to say that the principles laid down by 
the Mayor's Council are as certain to become a general 
modus vivendi in industry as the preferential union shop. 
By destroying the status theory, the mere act of dis- 
charge is no longer basis for litigation, and, in conse- 
quence, the discharge issue, like the closed shop, should 
no longer stand as a stumbling block in the way of better 
relations between the parties. They can now turn their 
attention once again to their joint problems — the prob- 
lems of enforcement of standards, the repression of the 
shop strike, the solution of the piece price dilemma, and 
the better regularization of employment. But note this: 
The final result, so valuable to all parties concerned, could 
not have been accomplished by mutual agreement. It 
required judgment, impartial judgment, by a tribunal 
in which both sides had confidence and before which 
each side might have a full and complete hearing. Before 
such a tribunal there could be battle, not the battle of 
war, but the battle of ideas. The prime lesson of the 
191 5 experience is that great conflict over vital principles 
will arise even under joint agreements. Such conflicts 
cannot be settled by force. Neither the strike nor the lock- 
out will help. They cannot be settled by courts of law; 
courts of law are not constituted to take care of them. They 
cannot be settled — indeed, should not be settled — by com- 
promise. They must be beaten out in a forum of reason. 
If such a forum does not exist, it must be created. And 



THE MAYOR'S COUNCIL OF CONCILIATION 177 

even though it exist, errors of judgment, like errors of courts, 
must be expected. Such errors will require correction, 
modification, or even reversal. Through error, progress will 
be made. The "rule for the forum, like the rule for the judge, 
would seem to be: "Hew to the line; let the chips fall where 
they may" 






CHAPTER XVI 

THE NEW TRIAL BOARD 

In the 16,000 or 17,000 cases that went through the 
machinery of the Protocol, no effort had ever been made 
to introduce any kind of formalism. When the rules for 
the Board of Grievances (Appendix B) were adopted, 
none of the lawyers attempted to apply the formality 
of legal procedure. In consequence, the complaints 
from one side to the other were in the simplest form. 
When the discharge issue came to be serious, it was 
found that this looseness of practice resulted in the 
filing of complaints containing no other statement than 
that So-and-So had been unjustifiably discharged, or 
that So-and-So had been unjustly discriminated against, 
and requesting an investigation. Upon such a bare 
conclusion, the clerks would go out to the shop, investi- 
gate, and, in case of their disagreement, the Committee 
on Immediate Action would take charge. The study 
made by the Department of Labor of the workings of the 
Board of Grievances* developed that a vast number 
of discharge cases was brought without any real founda- 

* See Bulletins 98 and 144, Bureau of Labor Statistics, U. S. Depart- 
ment of Labor. 

178 



THE NEW TRIAL -BOARD 179 

tion. The records submitted to the Board of Arbitra- 
tion in 1914 showed that of 11,893 cases during the 
years 1911, 1912, 1913 and 1914, but 142 "discharge" 
cases went to adjudication, all the rest being either 
withdrawn, dropped or adjusted through the good 
offices of the clerks. In 191 1, 5% of the "discharge" 
cases were withdrawn, 54% were dropped, 26% were 
adjusted. In 191 2, 12% were withdrawn, 48% were 
dropped, 36% were adjusted. In 1913, 23% of the cases 
were dropped, 19% were withdrawn, and 45% were 
adjusted. In 1914, 22% were dropped, 18% were with- 
drawn, and only 54% were adjusted. These figures 
sufficiently indicate the very substantial mass of com- 
plaints either dropped or withdrawn. When the Mayor's 
Council came to consider this problem, it made the follow- 
ing application of its fundamental rule to the rights of 
the workers: 

(a) . . . the workers have an inalienable right to 
associate and organize themselves for the purpose of 
maintaining the highest feasible standard as to wages, 
hours and conditions, and of still further raising the 
standards already reached. 

(b) . . . no employee shall be discharged or dis- 
criminated against on the ground that he is participating 
directly or indirectly in union activities. 

(c) . . . the employees shall be duly safeguarded 
against oppressive exercise by the employer of his func- 
tions in connection with discharge and in all other 
dealings with the workers. It is to be carefully noted 



180 LAW AND ORDER IN INDUSTRY 

that the phrase " oppressive exercise of functions" need 
not imply a reflection on the character and intentions of 
the high-minded employer. 

And the Council said, " A tribunal of some kind is neces- 
sary, in case either of the parties to this covenant be- 
lieves itself to be unjustly aggrieved," but "the con- 
struction of such a tribunal is a delicate and difficult 
task, demanding the greatest care, lest on the one hand 
the movements of industry be clogged by excessive litiga- 
tion, and lest on the other hand the door of redress be 
closed against even the most real and justified com- 
plaint." It therefore recommended that: 

(a) Every complaint from either organization to the 
other shall be in writing, and shall specify the facts which, 
in the opinion of the complaining organization, constitute 
the alleged grievance, and warrant its presentation by one 
organization to the other. Such complaints shall be 
investigated in the first instance by the representatives 
of the two associations, chosen for the purpose, it being 
impressed upon them that they use and exhaust every 
legitimate effort to bring about an adjustment in an 
informal manner. In case, however, an adjustment by 
them be not reached, the matters in dispute shall be 
referred for final decision to a 

(6) Trial Board of three, consisting of one employer, 
one worker and one impartial person, the latter to be 
selected by both organizations, to serve at joint expense 
and to be a standing member in all cases brought before 
the Board. The remaining two members shall be se- 
lected as follows: 



THE NEW TRIAL BOARD 181 

The Association and the Union shall each make up a 
list of ten persons, to be approved by the other. From 
these two lists, as each case arises, each party shall select 
one person. 

In establishing the rule that the complaint should specify 
the facts which constitute the alleged grievance, the 
Council was borrowing from the lessons of judicature. 
It is the experience of all courts that where the doors 
of the tribunal are always open, litigation multiplies 
beyond all reason. Without in any sense being technical 
or too formal, there would seem to be no reason why 
any complainant should not be required to set forth, 
at the time of the assertion of the grievance, the facts 
upon which he rests his claim. This simple rule must un- 
doubtedly eliminate a very large mass of the litigation 
that existed under the old system. Another change 
of procedure took place. The Committee on Immediate 
Action (as was pointed out in Chapter X) consisted of 
two partisans and one non-partisan, the non-partisan 
being neither a manufacturer nor a worker. The prob- 
lems coming before such a tribunal are shop problems, 
requiring the technical knowledge possessed only by a 
manufacturer or a workman. In recommending that 
the trial board itself should be made up of three, of whom 
one should be an employer and one should be a worker, 
the Council undoubtedly took a step forward. By so 
doing, it left the Chief Clerks as advocates to fight out 



182 LAW AND ORDER IN INDUSTRY 

their respective claims before the tribunal and brought 
into each situation the technical shop knowledge of the 
employer and worker, at the same time putting all 
three of the members of the board, upon their honor as 
judges. 

Another change: — The impartial chairman of the 
old Committee on Immediate Action had been retained 
at an annual salary. When this procedural change was 
carried over into the dress and waist industry in New 
York in 19 14, the employers' association and the local 
union in that industry agreed that the impartial chair- 
man should be employed by the case at a fixed stipend, 
each side to pay half. This expense item in the adminis- 
tration of the law had the beneficent effect of forcing 
the clerks to agree diplomatically and thus avoided 
useless litigation. Influenced by this experience, when, 
after the acceptance of the recommendations of the 
Mayor's Council, the list of impartial men was made up, 
both employers' association and union agreed in the 
cloak industry that there, too, payment should be 
made according to the service rendered in each case. 
This should have the effect of preventing useless liti- 
gation. 

It is yet too soon to draw any deductions covering the 
relative efficiency of the new method of procedure over 
the methods of the old Committee on Immediate Action. 
Since the acceptance of the recommendations of the 



THE NEW TRIAL BOARD 183 

Council, the new machinery has been tried in several 
cases coming up before trial boards.* In the shop of 
Charles Lavine & Co., it appeared that it became nec- 
essary for the employer to curtail the number of people 
in one of his departments, and accordingly five operators 
were discharged. The union immediately filed a com- 
plaint, charging that four operators had been discrimi- 
nated against for union activity. One was a former 
shop chairman, another was a member of the price com- 
mittee, while a third was then a member of the execu- 
tive board of the union. After hearing the evidence of 
both sides, the chairman of the trial board f rendered 
the following decision for that body: 

In the matter of the complaint against the firm of 
Charles Lavine & Co., of 126 West 22d street, for dis- 
charging operators Boxer, Gopen, Lorber and Kaplan, 
all active members of the price committee and former 
shop chairman, claiming that they intend to curtail their 
factory, while the remainder of the employees such as 
finishers, pressers and cutters, have not been approached 
in this regard, wherein it is charged that the action of this 
firm is one of discrimination against the above mentioned 
people for union activity, I beg to say that, after a full 
hearing of the case, I have come to the conclusion that 
the discharge of these four operators was legitimately for 

* International Cloak Co. case — Women's Wear, September 15, 191 5; 
Prakin & Lebofsky case — Women's Wear, September 16, 191 5; Charles 
Lavine & Co. case — Women's Wear, October n, 191 5. 

t Cyrus L. Sulzberger, chairman; William Dann for employers, and 
J. Sepin for workers. 



184 LAW AND ORDER IN INDUSTRY 

the purpose of reorganizing the factory and that no dis- 
crimination for union activity has been shown. 

These cases would seem to indicate that the rule in 
cases of discrimination and discharge was stated by the 
Council with sufficient clarity and definiteness to reduce 
the issues for trial boards to simple questions of fact. 
The Lavine case is significant, for in that case the dis- 
charged employees occupied official positions as repre- 
sentatives of the union, and this was not taken as con- 
clusive evidence of intention to discharge for "union 
activity," but considered together with all the other 
facts in the case. Undoubtedly, the ruling by the Council 
upon the fundamental issue that had disturbed the re- 
lations of the parties for nearly five years will of itself 
relieve the strain and make unnecessary much of the 
complex machinery of the Protocol. Indeed, when the 
union in its communication of June 28th suggested a new 
agreement, it said: "We do not desire to revive the Pro- 
tocol with its intricate machinery." The experiences 
of the parties leading up to the termination of the Pro- 
tocol convinced both that the machinery for redressing 
grievances was too free of access. If we turn back these 
pages to the consideration of the 19 13 experience, we 
will find that at that time the union was torn with con- 
flict over belief that the machinery was inadequate to 
redress grievances. Thus we do learn our lessons by 
bitter experience only. In 1913 the leaders of the union 



THE NEW TRIAL BOARD 185 

were ready to destroy the Protocol because of the inade- 
quacy of the machinery to redress grievances. In 191 5 
they would simplify procedure in order to revive the 
Protocol. The explanation, of course, is that there is no 
way of determining whether machinery of this character 
is either adequate or inadequate, except by actual ex- 
perimentation. We " learn by doing." One lesson has 
been learned: Too much opportunity for litigation is 
quite as bad as not enough. 



CHAPTER XVII 

THE REVIVAL OF THE PROTOCOL 

When the Mayor's Council first called the parties 
into executive session, the chairman asked: Can we not 
secure your immediate assent to the continuance of the 
Joint Board of Sanitary Control? Both sides answered, 
Yes. Thus the work of the Board, described in Chap- 
ter IV, was continued — certainly a high tribute to its 
management. Then the Council took up tentatively the 
various provisions of the Protocol,* and found, if the " dis- 
charge" issue were disposed of satisfactorily, Articles I, 
II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, 
XIV and XV could again be made acceptable to both 
parties. In consequence, the Council first took up this 
issue, then considered the questions relating to immediate 
increases of wages and establishment of standard rates 
per hour for piece workers, and thereafter made recom- 
mendations upon these branches of the subject. f It also 
recommended that the parties submit to the arbitra- 
ment of the Council two questions, one involving over- 

* See Appendix A. 
t See VI, Appendix D. 

186 



THE REVIVAL OF THE PROTOCOL 187 

time work on Saturday and the other the number of 
legal holidays to be observed in the industry. 

Thus, with the disposition of the " discharge" issue, 
the revision in machinery for redressing grievances, the 
advance in wages and the matters reserved for arbitra- 
tion, the old Protocol was revived — save in two further 
important respects. First, the new agreement was 
tentative and for a definite time. It was to continue 
"for the period of two years" from the date of the 
recommendations and " thereafter for like periods of 
two years, unless terminated by either party on two 
months' notice," with provision for modifications to be 
presented at least two months before the termination 
of any period. 

Next, in making these recommendations as to wages 
and machinery, the Council frankly admitted its own 
inability within the time at its disposal to grapple fully 
with the problems presented to it. Therefore, in addi- 
tion to securing the assent of both parties to the re- 
establishment of the Board of Sanitary Control, at 
the very outset it secured also their assent to the con- 
tinuance of the Council as a Commission for the purpose 
of "investigating thoroughly the fundamental problems 
of regularization, standards of wages and enforcement of 
standards throughout the industry, of trade education, 
of a more thorough organization of the industry; and 
on the basis of such investigation to submit a construe- 



188 LAW AND ORDER IN INDUSTRY 

tive policy to both organizations.' ' This assent of both 
parties was subsequently ratified by formal appoint- 
ment by the Mayor. In its recommendations, it will 
be noted that the Council, referring to its continuance in 
existence for study and constructive recommendations, 
said: ". . . the Council . . . will be available when- 
ever the parties desire to consult with it, and if either 
organization feels aggrieved against the other, such 
organization may address the Council upon the subject, 
and the Council will do the best it can to assist." Ques- 
tions of interpretation did arise even before both parties 
accepted the recommendations, and the manufacturers 
asked the Council to make supplementary interpreta- 
tions before filing their acceptance. This the Council 
declined to do, stating that in its opinion its recom- 
mendations were sufficiently clear, and unofficial inter- 
pretations need not be considered. It did say, however, 
that if the recommendations were accepted, it would 
hold itself in readiness to interpret any of the provisions 
of the recommendations at any time actual controversy 
arose. 

When both parties accepted the recommendations in 
toto, the old Protocol provisions enumerated were re- 
vived, the Council of Conciliation became the new Board 
of Arbitration, and besides became the impartial com- 
mission to aid both parties in the rational study and 
solution of their joint problems. In securing a body of 



THE REVIVAL OF THE PROTOCOL 189 

men as arbitrators not one of whom was under obliga- 
tion to either of the parties because of his selection, 
thus backed by the appointment of the Mayor and public 
opinion, we must admit that a change took place in the 
direction of industrial progress in this industry. In 
securing the aid of impartial and outside study for the 
better solution of the problems affecting the industry, 
the parties surrendered in exchange some part of their 
independence as organizations. The old Protocol was 
called "perpetual" because it had no definite time limit. 
It was less perpetual than the newer document, for it 
could be terminated at any time. Every two years the 
new document is subject to revision, and it may be ex- 
pected that controversy will be left to accumulate for 
such occasions and possibly make for serious friction 
again. On the other hand, under the old agreement there 
might be controversy at any time. Whether or not this 
change is to the advantage of either party or both re- 
mains to be seen; but it is not too optimistic to believe 
that the issues which tore up the industry and the Pro- 
tocol having been disposed of, attention will be con- 
centrated from now on upon the constructive legis- 
lation required for the upbuilding of the industry as a 
whole. If both join in such a work with the aid of the 
Mayor's Council (now Commission), they should lose 
something of the old feeling of antagonism — at least 
until some new large issue comes to the surface. Of 



190 LAW AND ORDER IN INDUSTRY 

one thing we can be certain. The precedent of sub- 
mitting in the hour of crisis to an impartial tribunal 
appointed by the Mayor and backed by public opinion 
the most vital conflict of principles that could arise in 
industry will never be forgotten. 



CHAPTER XVIII 

INFERENCES 

The two assumptions made at the end of Chap- 
ter VII would seem to be fully established: 

i. Given institutions for preserving law and order in in- 
dustry and for improving the welfare of the industry, the 
enterprise will prove valuable to employer and worker alike, 
provided it is carried out in a spirit of mutual helpfulness 
and with a recognition of the business factors in the joint 
problem. Given leaders on both sides who trust each other, 
the underlying spirit of the institutions will find expression 
in day to day progress. 

2. Let either side seek to impose its will upon the other 
by coercion; let either side play unfair, and the institutions — 
however well planned — will crumble and fall. 

The process is slow, too slow for impatient people, but 
the faith of the framers of the Protocol is not wholly 
misplaced. The line of direction in the way of bringing 
a better peace and a higher welfare in industry, is shown 
to be in the clearer recognition of the underlying principles 
of judicature and parliamentarism. In other words, that 
reason and debate with impartial tribunals {voluntarily 

selected) furnish the way out. 

191 






192 LAW AND ORDER IN INDUSTRY 



L 

: 



Experience in the cloak situation demonstrates con- 
clusively that the faith in collective bargaining is justified 
and that the system is practicable, provided adequate 
machinery is established and there is leadership on 
both sides fully expressing the spirit of the arrange- 
ment. 

What can be done then to facilitate the making of 
collective agreements generally? The failure "to recog- 
nize the union" brought upon the head of young Mr. 
Rockefeller criticism not only from trades unionists, 
but from those who undertook to speak for the public. 
But Mother Jones found in half an hour that it was not 
from greed that Rockefeller spoke. She found that he 
was human and that there was underlying his opposi- 
tion to trades unions a genuine desire to improve the 
conditions of all workers, and particularly the Colorado 
mine workers. His refusal to accept personal respon- 
sibility for conditions in the mining camps in Colorado 
was criticized by the public, of course.* But while 
this chapter is being written he is in Colorado with the 
assistance of an industrial expert,f engaged now in 
meeting this personal responsibility, and in devising 
machinery recognizing the right of the workers to have 
their grievances redressed and to have their standards 
improved. The machinery, it may be noted, is similar to 

* See John Fitch's article in The Survey, August ai, 1915. 
t Mackenzie King. 



INFERENCES 193 

the machinery outlined in Chapter VI. Representatives 
of the workers and representatives of the employers 
join in investigating the facts and endeavor to arrive at 
an agreement. If they fail, the matter then goes to 
two chief representatives. The representatives of the 
workers are selected by the people actually employed. 
They are not selected through the organization of the 
United Mine Workers of America. Mr. King is reported 
to have said during Mr. Rockefeller's visit to the mines, 
when this method of adjusting grievances was outlined 
to the press: 

There is to be no recognition of the United Mine 
Workers as a result of Mr. Rockefeller's visit to Colorado. 
Our new system of welfare work under which employees 
are allowed to name grievance committees to protest to 
mine superintendents over conditions they don't like 
is the company's answer to demands of the union for 
recognition. It is democratic and successful. 

The plan does not contemplate official dealings with 
the United Mine Workers in the same frank and open 
way in which the cloak manufacturers deal with the 
cloakmakers' union, or the Chicago clothing firm deals 
with the garment workers. On the other hand, it does 
recognize the underlying principle of collective bargain- 
ing, in that it recognizes that the workers are entitled to 
be organized and to deal with their employers in organ- 
ized fashion; and further recognizes the necessity for 



194 LAW AND ORDER IN INDUSTRY 

machinery for the adjustment of grievances and for the 
improvement of standards by juridical and parliamentary 
processes. Up to the very point of dealing with the 
union itself, the plan is a full acceptance of the princi- 
ples underlying the Protocol. Whether or not the plan will 
work, remains to be seen. Already the leader of the 
mine workers, is reported to have said: 

I believe Mr. Rockefeller is sincere. I believe he is 
honestly trying to improve conditions among the men in 
the mines. His efforts probably will result in some 
betterments which I hope may prove to be permanent. 

However, Mr. Rockefeller has missed the fundamental 
trouble in the coal camps. Democracy never has existed 
among the men who toil underground. The coal com- 
panies have stamped it out. Now Mr. Rockefeller is not 
restoring democracy, he is trying to substitute paternal- 
ism for it. 

I am glad to assume that Mr. Rockefeller is earnest in 
his desire to do something for the miners, but Mr. Rocke- 
feller will be here only a week or two. After he is gone 
what then? The miners will have neither organization 
nor contracts to protect them. They will be at the mercy 
of whatever superintendent or pit bosses the company 
may select. 

When I talked with Mr. Rockefeller in New York I 
told him that if he really wanted to do something for the 
miners he ought to talk with President White of the 
United Mine Workers of America and sign a contract 
with the organization. Yes, I mean recognition of the 
union. That is the only remedy which will permanently 
cure the trouble in Colorado. Without union recogni- 



INFERENCES 195 

tion I fear, I gravely fear, that all of Mr. Rockefeller's 
efforts will count for little,* 

In the report of the representatives of the employers 
upon the Federal Industrial Relations Commission, ten 
explanations are offered for employers' opposition to 
dealing with trades unions, viz.: 

(a) Sympathetic strikes. 

(b) Jurisdictional disputes. 

(c) Labor union politics. 

(d) Contract breaking. 

(e) Restriction of output. 

(/) Prohibition of the use of non-union made tools and 
materials. 

(g) Closed shop. 

(h) Contests for supremacy between rival unions. 

(i) Acts of violence against non-union workers and the 
properties of employers. 

(J) Apprenticeship rules.f 

Perhaps the cause of more conflicts than any other of 
those mentioned, is the ' ' closed shop . ' ' The ' ' preferential 
union shop" established through the Protocol in 1910, 
would seem to furnish the modus vivendi for elimination 
of this obstacle, (e), (/) and (j) relating to the conflict 
between what we may call "the efficiency principle/' 
and "control of the work," is substantially the same 

* New York Times, September 23, 191 5. 

t Report of Federal Commission on Industrial Relations (1915), p. 4*4« 



196 LAW AND ORDER IN INDUSTRY 

kind of issue that produced the 191 5 clash in the cloak 
industry. The principles laid down by the Mayor's 
Council, and now accepted by the garment workers' 
union, would seem here to furnish the way out. 

(b) Jurisdictional disputes, (c) Labor union politics, 
and (h) Contests for supremacy between rival unions, are 
obstacles to be overcome by strong national self-super- 
vision and self-control of unions generally. Only the 
trades unions themselves can change this. It will come 
about when they recognize that the federationist theory 
will not suffice to meet the growing obligations of great 
national unions dealing collectively with employers. 
They must vest in the national Federal body power simi- 
lar to that vested by the states in the Federal Govern- 
ment. To-day the American Federation of Labor oc- 
cupies the same position with reference to its power to 
make good in dealing with associated employers, that the 
colonies occupied in dealing with other nations before 
we created a Federal Government. 

But of the great obstacles enumerated in the employers' 
schedule, id) Contract breaking, and (i) Acts of violence 
against non-union workers and the properties of employ- 
ers, are the most serious. 

As to contract breaking, trades unionists themselves 
are more and more coming to realize its seriousness. The 
employers' representatives on the Federal Commission 
quote from two official union journals, one the Coal 



INFERENCES 197 

Age of December 20, 1913, issue by the Association 
of Bituminous Coal Operators of Central Pennsylvania, 
and the other from the United Mine Workers' Journal, 
official organ of the United Mine Workers of America, 
in each of which the officials clearly recognize and con- 
demn violations of contracts by members of the union. 
On this point the official organ says: 

I believe I am safe in saying that no problem has given 
them (the officials of the union) so much concern as the 
problem of local strikes in violation of agreements. 

Thousands of dollars are expended every year in an 
effort to organize the 250,000 non-union miners in the 
United States, while hundreds of our members go on 
strike almost every day in absolute, unexcusable viola- 
tion of existing agreements.* 

And in the other, where suspension of work was resorted 
to in order to compel a complete unionizing of the mine: 

This conduct is in direct violation of the contract, 
and specifically interferes with and abridges the right of 
the operator to hire and discharge; of the management of 
the mine, and of the direction of the working forces; this 
conduct in violation of contract on the part of the Mine 
Workers, as well as that mentioned in the preceding 
paragraph, has resulted in more than one hundred strikes 
during the life of our scale agreement.! 

The Protocol in the cloak industry, after five years of 

* Report of Federal Commission on Industrial Relations (1915), p. 420. 
t/<2.,p. 421. 



198 LAW AND ORDER IN INDUSTRY 

operation, was terminated on account of a shop strike 
unmitigated in time. Why should an entire industry 
suffer on both the workers' and the employers' side, and 
why the public, because of the law-breaking of a small 
anarchically-minded group? 

In those industries where the employers control the 
output and are not affected by competition, the prob- 
lems of collective bargaining are simple. It makes no 
difference what wages the competitor pays nor what 
standards of labor he observes. But in those indus- 
tries where the competition in labor cost is vital and de- 
terminative of success or failure in business, employers 
will not accept willingly the methods of collective bar- 
gaining until this competitive obstacle is overcome. 
This is, indeed, the crux of the difficulties in the cloak 
industry. 

Mr. Grant, in his study of the building trades, finds the 
following process taking place: The employer of union 
men complains to the union that a competitor is allowed 
to go on under non-union conditions. Naturally, he 
feels that it is not fair to him to be obliged to observe 
all the union rules and regulations when his competitors 
are free from like restrictions. When the union's busi- 
ness agent comes along and complains because of some 
more or less important violation of a rule, the employer 
is apt to get angry and say, " Why don't you go after the 
non-union work and leave me alone? Mr. Smith and Mr. 



INFERENCES 199 

Jones are employing non-union men. They can under- 
bid me on every job I estimate against them. They are 
not paying the wages. But you don't bother them. 
You keep after me. I am growing tired of it, and if 
something is not done soon, I shall quit employing union 
men." * 

The same story can be told in the cloak industry. 
Mr. Grant says: 

The argument is logical and the union business agent 
knows it. If he does not make some effort to stop the 
non-union work, another firm, probably, will be lost to 
the union. He is pressed by the members of his union 
demanding protection from the unfair competition of 
the non-union man, and he is pressed by the union em- 
ployer who demands protection against his unfair com- 
petitor. Neither suggests violence, but if the non-union 
firms will not meet the business agent or discuss condi- 
tions with him, he resorts to the only expedient which 
appears open to him. Either the non-union men are 
assaulted, or an attempt is made to destroy the 
work. 

The structural ironworkers tried both methods and the 
latter seemed most effective and least dangerous. In the 
beginning of the trouble, when the slugging of non-union 
men was the rule, the arrests were numerous and many 
convictions were obtained. The dynamiters carried on 
their work of destruction for five years before they were 
caught.f 

* Report on the International Association of Bridge and Structural 
Ironworkers, by Luke Grant, pp. 136, 137. 
Ud. t p. 137. 



200 LAW AND ORDER IN INDUSTRY 

No self-respecting employers' association and no self- 
respecting union can resort to methods of this sort for 
meeting competition. We seem to be running around 
within two vicious circles: either (a) The Protocol em- 
ployer breaks his agreement because the non-Protocol 
employer is breaking his agreement; or the workers 
break their agreement by going on strike because the 
employer breaks his agreement, — an attempt to cure 
contract-breaking by contract-breaking — Or, (6) The 
Protocol employer breaks his agreement because the non- 
Protocol employer breaks his. The union gets after the 
non-Protocol employer and calls a strike. Strike means 
violence. If the parties were perfectly frank with each 
other, the conversation would run something like this: 

Employers: We will make an agreement with you 

provided you can enforce the same standards against 

our competitors. 
The Union: We are willing to obligate ourselves to do 

that. 
Employers: How can you do it? 
The Union: By strikes. 
Employers: Well, your strikes without violence are not 

generally successful. 
The Union: Then we will have to use violence. 
Employers: Then we can't join with you. 
The Union: Then we'll strike against you. 
Employers: Well, your strikes against us won't be 

successful unless you use violence. 
The Union: We know that. 



INFERENCES 201 

Employers: Well, if you use violence we will too. 
The Union: All right, let's have it out. 

Of course, no conversation of this sort ever actually 
takes place, for the obvious reason that neither party 
would be so frank, yet that the process goes on as a 
mental process, is too true to be disputed. As Mr. Grant 
says: "Mr. St. John gave public expression to views that 
are privately entertained by tens of thousands." * 

Notwithstanding the clear understanding of what 
constitutes peaceful picketing, in practice it is not 
carried out. Mr. Grant says: 

The pickets know that; so do the employers. It is not 
necessary that the pickets actually assault the employees 
who desire to enter the factory. If the pickets assemble 
in sufficient numbers, it is possible to intimidate those 
seeking employment, without actually assaulting them. 
But it is the fear of possible assault that brings results; 
not moral suasion. The "moral suasion" argument is 
good in the courtroom or on the public platform, but 
around the factory it counts for practically nothing. 
Every one with practical experience of conditions knows 
that.f 

"It is better to meet the facts squarely than to dodge 
them by subterfuge and hypocrisy." The truth of the 
matter is, that if strikes cannot be conducted success- 

* Report on the International Association of Bridge and Structural 
Ironworkers, by Luke Grant, p. in. 
tW., p. no. 



202 LAW AND ORDER IN INDUSTRY 

fully without violence, nor successfully resisted without 
violence, both sides continue to move in a vicious circle. 
The business factor of competition is at the bottom of 
the whole difficulty. Its solution is the key to the whole 
problem. A careful study of the experience with col- 
lective agreements in Great Britain led the Industrial 
Council, made up of representative employers and rep- 
resentative trades unions, to say: 

In cases where, however, there is a considerable 
minority outside the Employers' Association, and the 
work-people's organization is not sufficiently strong to 
deal with such minority, there is a real danger that 
effective voluntary agreements cannot be maintained 
even as regards the majority. Where the agreement 
provides for a particular rate of wages (and the industry 
is one in which the wages-bill is a prominent factor in the 
cost of production) the members of the Employers' 
Association who are parties to the agreement, and who 
comply with its terms, are at a distinct disadvantage as 
compared with those non-associated firms who, while not 
being bound to pay the rate of wages fixed by the agree- 
ment, are competitors with them. The influence of such 
a non-complying and competitive minority is likely to 
endanger the continuance of the agreement, and we are 
of opinion that means should be provided whereby, at 
the request of the parties to an agreement, and after 
suitable inquiry, its operation should be extended to 
include the minority and its terms made applicable to 
them* 

* Reprinted in Bulletin 133, U. S. Department of Labor, Par. 47. 



INFERENCES 203 

In the history of the reform of municipal politics, we 
have learned some lessons from the experiences of the 
last quarter of a century. The "guilt is personal" 
theory was carried out in the attack upon Tweed and 
upon Croker. With our perspective modified in the 
light of experience, we now realize that Tweed and 
Croker were merely applying to municipal affairs the 
general ethical standards of their own friends in mer- 
cantile affairs. The community applied a different 
ethical standard to municipal affairs than men applied 
to their own private business. We had waves of reform. 
The battle ranged about moral standards and their 
enforcement. Little attention was paid to the business 
standards and the administration of a city. When the 
reformers were swept into power, they made "reform 
hideous" because they failed to recognize and face the 
business factors in the municipal problems. It did not 
seem that sound financial management and efficient 
business administration could be squared with high 
moral purpose and principles. When the municipal 
reformers got to meeting the facts squarely and studied 
the factors that made for better government, they 
began to make real progress. The Citizens' Union 
established a Legislative Bureau in Albany, got at the 
facts, reported them to the community and then and 
there in New York began a steady improvement in the 
tone and character of legislators and legislation. The 



204 LAW AND ORDER IN INDUSTRY 

publication of the records of the legislators made for the 
advancement or retardation of men in politics, accord- 
ing to their deserts. Similarly, the Bureau of Municipal 
Research found the facts in reference to municipal ad- 
ministration, disclosed them, and made for better under- 
standing and sounder judgment upon issues relating to 
the management of the city. 

Is it not possible that the social reformer needs still 
to learn the lesson that the municipal reformer has al- 
ready learned? Industrial peace and welfare is not to 
be secured by acquiescence in violence as a method, nor 
by attacking personally individual employers, or even 
the whole class. Employers generally already are aware 
of the value of collective bargaining to society generally. 
They accept it in theory and in principle. What they 
want to know is how to run business by it. We will get 
more collective agreements when we solve the problem of 
enforcement of standards. Those who from the outside 
believe in the social value of joint agreements between 
unions and employers' associations, must not rely upon 
violence or law-breaking as the means for securing them. 
They must face the business factors squarely. When 
we shall do this we shall make progress, — as we did in 
municipal reform. 



CHAPTER XIX 



LAW BREAKING 



To strike without orders from his union, is for the union 
member to break the law of his own organization. To pay 
under the accepted scale is for the association member 
to break the law of his own organization. For the em- 
ployer outside of the association under a union agree- 
ment, under-payment of scale is plain violation of his 
pledged word. 

Violations of agreements are simply the efforts of men 
dissatisfied with their bonds to make short-cuts through 
the law — the law of their own making. The employer 
who breaks the law invites the workers to follow his ex- 
ample. The worker who breaks the law incites the em- 
ployer to hit back. The formula each comes to employ is, 

wrong + wrong = right. 
This formula is not new in industry. Two recent studies, 
each by trained investigators,* made under the direction 
of the Federal Industrial Relations Commission, confirm 
the impression that the lines of strength and weakness 

* Report on the Colorado Strike, by George P. West; and Report on 
the International Association of Bridge and Structural Ironworkers, 
by Luke Grant. 

205 * 



206 LAW AND ORDER IN INDUSTRY 

we find in the cloak industry, are common to other in- 
dustries. No truth is so completely demonstrated as the 
futility of law-breaking as a method of accomplishing 
results, whether employed by workers or by employ- 
ers. 
Robert Hunter says: 

The problem of methods has always been a vital 
matter to the labor movement, and, for a hundred years 
at least, the quarrels now dividing syndicalists and 
socialists have disturbed that movement. In the Chart- 
ist days the " physical f or cists " opposed the " moral 
forcists," and later dissensions over the same question 
occurred between the Bakouninists and the Marxists. 
Since then anarchists and social democrats, direct 
actionists and political actionists, syndicalists and 
socialists have continued the battle.* 

After a calm study of the entire history of the labor 
movement, Mr. Hunter concurs with the conclusion of 
Morris Hillquit (now counsel for the Cloakmakers' 
Union). Says Mr. Hunter: " Condemning without re- 
serve every resort to lawbreaking and violence, and in- 
sisting that both were ' ethically unjustifiable and tactic- 
ally suicidal,' Mr. Hillquit pointed out that whenever 
any group or section of the labor movement has em- 
barked upon a policy of * breaking the law' or using 'any 
weapons which will win the fight/ whether such policy 

* "Violence and the Labor Movement," by Robert Hunter, Preface, 
p. ix. 



LAW BREAKING 207 

was styled ' terrorism/ l propaganda of the deed/ l direct 
action/ ' sabotage/ or 'anarchism/ it has invariably 
served to demoralize and destroy the movement, by 
attracting to it professional criminals, infesting it with 
spies, leading the workers to needless and senseless 
slaughter, and ultimately engendering a spirit of dis- 
gust and reaction. It was this advocacy of ' law-break- 
ing ' which Marx and Engels fought so severely in the 
International and which finally led to the disruption of 
the first great international parliament of labor, and the 
socialist party of every country in the civilized world 
has since uniformly and emphatically rejected that 
policy." * 
In the Ironworking Industry: 

Diplomacy was out of the question, so dynamite was 
tried. It proved to be a colossal blunder, as was the 
rejection of the peace terms offered in the beginning of 
the fight. 

The campaign of violence was a failure because of the 
determination and financial resources of the employers 
opposing the union. Had the ironworkers expended the 
same money and energy in trying to organize the open 
shop men by legitimate methods, the results might have 
been different.! 

Mr. Grant gives as one of his conclusions, that though 

* Violence and the Labor Movement," by Robert Hunter, Preface, 
p. viii. The New York Call, November 20, 191 1. 

t Report on the International Association of Bridge and Structural 
Ironworkers, by Luke Grant, p. 138. 



208 LAW AND ORDER IN INDUSTRY 

there may be found many instances where the "use of 
physical force has, for a time, won advantage for the 
side that has used it," the gains "are temporary and do 
not make for permanent industrial peace"; that though 
an employer through force of circumstances submits 
"to certain conditions which he believes are unjust," 
and the "fear of violence and the destruction of property 
may cause him to make terms with a union against 
his will and business judgment," submission through such 
fear or business necessity will lead him to "break from 
the restraint on the first opportunity." The same rule 
applies to workingmen. "Force may subjugate one side 
or the other in an industrial dispute, but it will not re- 
move discontent. It will not establish justice." * 

Before the United States Commission on Industrial 
Relations, the Secretary of the Industrial Workers of 
the World said that he believed in violence if it were 
necessary to accomplish a victory; that if destroying 
property was essential to produce the result, he was 
ready to join in the destruction of property. And, in 
justification of the views he expressed, he asserted that 
employers did not hesitate to use their power to oppress 
workers and that their action in forcing child labor, 
limiting the opportunities of children to obtain an edu- 
cation and working their workers long hours, thus 

♦Report on the International Association of Bridge and Structural 
Ironworkers, by Luke Grant, p. 139. 



LAW BREAKING 209 

destroying their health and efficiency, was a brutal 
application of force as bad as the workers' resort to 
violence. Mr. Grant says that though "the views of 
Mr. St. John are extreme and most labor leaders will 
openly repudiate them," he did, in fact, give "public 
expression to views that are privately entertained by 
tens of thousands. It is results that the workers are 
striving for and the history of the labor movement 
proves that they have been compelled to fight for every 
important improvement in conditions which they now 
enjoy." * Again, that "Had the workers always taken 
the course which the letter of the law requires them to 
take, they would, in all probability still be working twelve 
or fourteen hours a day." f 

In Colorado we find employers freely violating the law. 
If one per cent of what they are charged with by Mr. 
West be true, they deserve his severe condemnation. 
From breaking one's word and breaking the law, to con- 
doning violence, is an easy descent, and from condoning 
violence to the employment of hired "sluggers" or 
"thugs" is the next easy step. As Mr. Grant says: 
"Violence grows. From c punching the nose of a scab' 
openly, where he has a chance to strike back, it is only a 
few steps to lying in ambush for him and trying to brain 

* Report on the International Association of Bridge and Structural 
Ironworkers, by Luke Grant, p. in. 
t Id., p. 112. 



210 LAW AND ORDER IN INDUSTRY 

him with a bludgeon." There has been a marked change 
(as Mr. Grant finds) in the building trades in the nature 
of the violence committed and in the methods used, and 
the ordinary workman who in former days was apt to 
use his fists on the head of the "scab" for the sake of 
"the cause/' seldom does so now. "His place has been 
taken by the professional thug and gunman. Violence has 
become commercialized and made more brutal." * As 
Mr. Grant says: "It is puerile to contend that force and 
violence are not accompaniments of strikes and lock- 
outs." t Strikes in the cloak industry, as we have seen, 
furnish no exception to this rule. 

"On one side is the employer who rightly or wrongly 
believes that he is justified in refusing to accede to the 
demands of the workers. He recognizes that if they are 
not satisfied with these demands they may leave their 
places and he may substitute others. This is the theory 
of the law and the justification for organized withdrawal 
from employment. But this is not the whole of the 
matter. On the other side are the workers, who "feel 
they have a property right in the jobs they formerly 
held. That the law holds they have no such right, and 
that anyone who is willing to accept the conditions, shall 
have a right to fill the jobs, without fear or molestation, 

* Report on the International Association of Bridge and Structural 
Ironworkers, by Luke Grant, pp. 115, 116. 
t Id., p. 108. 



LAW BREAKING 21 1 

does not alter the situation in the minds of the workers. 
They look upon the new employees as enemies, who are 
taking the bread and butter out of their mouths and the 
mouths of their families. They cannot see the justice 
of the law. . . . They refuse to accept the dictum of the 
law and of the employer, that they no longer have any 
claim on their former jobs. They want the jobs, which 
they think are theirs. . . . What is the natural thing 
for the strikers to do? Prevent new employees from 
taking the jobs in that factory, of course. If that can be 
done by peaceful methods, so much the better. If it 
cannot, then it must be done by violent methods. The 
important thing is that it be done. That is the way the 
workers view the situation, the law to the contrary not- 
withstanding." * 

When they reach this point the employer feels justified 
in repelling their attacks by similar use of force. Thus 
serious industrial problems are settled by hired strong- 
arm men, fighting it out on the streets! 

The study of these other industries helps us to un- 
derstand the Protocol problem. Without peace agree- 
ments we are face to face with law-breaking, running 
to riot and murder. With peace agreements we are again 
face to face with law-breaking, but law-breaking of a 
lesser kind, though inherently of the same moral nature. 

* Report on the International Association of Bridge and Structural 
Ironworkers, by Luke Grant, pp. 109, no. 



212 LAW AND ORDER IN INDUSTRY 

The experience of the cloak industry demonstrates that 
where large numbers of people are involved, there are 
bound to be breaches of faith, breaches of the law of the 
parties' own making. But there is clear progress. Since 
1910, as we have seen, there has been nothing approach- 
ing the reign of anarchy of pre-Protocol days. On the 
contrary, the gravest issues arising in industry have been 
met and disposed of in parliamentary and juridical 
fashion. There has been no general strike since igio. 
Both sides have been driven by the force of bitter expe- 
rience to prefer the method of law and order, even when 
under ordinary circumstances, either might have pre- 
ferred to test the other's strength. Yet it would be a 
perversion of the truth if we failed to schedule those 
manifestations of anarchy that still persist, and persist in 
spite of provision for orderly redress of grievances. 

The anarchy that we are here now considering, how- 
ever, is not the anarchy prevailing only in industrial 
relations nor in immigrant industries. It is, — to quote 
a keen writer on American politics — indicative of an 
"insidious and dangerous moral disorder," running 
through the whole of American life. It is, indeed, the 
" hypocritical homage to a law" which the American 
democracy does "not intend to obey except when con- 
venient." 

The Frank murder took place in Georgia. It was an 
American outrage. The offenders were neither immi- 



LAW BREAKING 213 

grants nor sons of immigrants. It was "in a deeper sense 
only an unusually sharp and shameless illustration of a 
besetting weakness of the American democracy.' ' The 
local communities in our country "have wished more 
than anything else to be left alone"; though they did not 
attempt to get along without law, they did in fact wish 
" freedom to do things in their own way, no matter whether 
that way was right or wrong" They promoted law "into 
a kind of disembodied coadjutor of King Demos. But 
they wanted on suitable occasion to be able to exempt them- 
selves from the reign of the law. . . . The people set up an 
impersonal king, whom they could unite to worship, but 
whom they did not have to obey. . . . The American 
democracy submitted to legalism only because legalism 
did not forbid a liberal measure of license outside of the 
law. ..." And this writer observes that " Instead of 
paying hypocritical homage to a law which it did not 
intend to obey except when convenient, the future 
American democracy must above all be sincere and 
thoroughgoing. It cannot afford to place a pretender on 
a throne in order to have a plausible excuse for escaping 
now and then from his authority." * No, anarchy and 
lawlessness in our country are not confined to workers or 
to employers. It is in the very atmosphere in which we 
live. 

* Georgia and the Nation, The New Republic, September 4, 1915, 
pp. 113, 114. (Italics ours.) 






214 LAW AND ORDER IN INDUSTRY 



The mere making of collective agreements or the inven- 
tion of new industrial appliances for redressing grievances 
or for establishing law and order in industry will not 
wholly eliminate this anarchical tendency. Protocols 
cannot bring to industry the moral backbone, nor invest 
it with the moral fiber lacking in American life generally. 
While its philosophy will gradually enter the dim re- 
cesses of minds already saturated with the strong drink 
of license, until employers and workers generally learn 
that drunkenness does not pay, temperance will not 
become a steady daily diet. The prime value of Protocol 
institutions lies in their educational influence upon those 
actually engaged in the work. It takes time and much 
suffering, but it leads more and more to an acceptance 
of law and order as something binding in and for their 
own sake. We are, of course, not in this instance speak- 
ing of law in the sense of organized legalism or formalism. 
We are here dealing with law of the parties' own making, 
z. e., the law of the contract, freely made, and we are 
speaking of defaults in the observance of one's own obli- 
gations. The employer who "cancels his orders" is as 
low in the scale as the worker who goes out on "shop- 
strike" in violation of the Protocol. If we, in America, 
would not exchange our political philosophy with the 
Germans, we must get the discipline of "est ist verboten" 
in some other way. We take the position that a pledge 
or a treaty is not a mere "scrap of paper." This is the 



LAW BREAKING 215 

standard by which we in America judge the great inter- 
national crisis now before us. Yet, we ourselves, put 
law "as a pretender on a throne in order to have a 
plausible excuse for escaping now and then from his 
authority." 

The lawyer in these industrial situations may perform 
his duty as advocate for either side in such controversial 
matters as are sure to arise. He may invent new ma- 
chinery to eliminate friction. He may join in earning 
out the policies assented to by both parties and in finding 
solutions for joint problems. But beyond all these 
things, the lawyers job primarily is one of education in 
first principles — the principles of law and order in 
democratic society. He must emphasize the sanctity of 
the pledged word and the adopted rule. He must secure 
more and more the ready acceptance of the slower, 
orderly way of redressing wrongs. The "short-cut" is a 
snare and a delusion. It leads to the woods. 



CHAPTER XX 

THE WHITE PROTOCOL LABEL 

Within six months after it had gotten under way, the 
Board of Sanitary Control determined to encourage the 
maintenance of sanitary conditions by awarding a cer- 
tificate to employers complying with its standards. In 
effect it was a "good ticket" for good behavior. This 
certificate was of value. It gave a sense of personal 
pride to the employer. When the system had been in 
operation for a short time, it occurred to me that if 
instead of a good ticket for the shop, we could have a good 
ticket for the garment, it would have a greater value. I 
assumed that there were enough women who would 
prefer to wear clothes made under sanitary and fair con- 
ditions to give the preference to such garments. At 
present, the power of the consumer is not effectively 
utilized to affect sanitary and other working condi- 
tions. My thought was the same in general as the one 
underlying the National Consumers' League. Indeed 
that organization was quick to encourage us by offering 
cooperation. Instead of a union label under the con- 
trol and disposition of the union, it seemed to me that a 
joint label issued under the supervision of the triangular 

216 



THE WHITE PROTOCOL LABEL 217 

board, the representatives of the public, the workers 
and the employers, could be transformed into a commer- 
cial as well as a social asset. It should not be made com- 
pulsory. It should be available to all manufacturers who 
meet the conditions underlying its issuance. 

Then, if the women of the country instead of expressing 
sympathy with the garment workers only at times of 
strike, could be induced regularly to apply their power 
at the really effective point, namely the moment of 
purchase of the garment, we should secure a really prac- 
ticable way of meeting the competition of the below 
standard manufacturer. Before the National Conference 
of Charities and Corrections at Cleveland in June, 191 2, 
I laid the matter out as follows: 

The responsibility for the existence of conditions that 
are unsafe for the worker is a responsibility resting upon 
the entire community. It should be shifted neither to the 
shoulders of the employers nor to the workers, nor to 
both combined. The public itself is responsible. If 
women's wear is manufactured under such conditions as 
to make for unsound men and women, society as a whole 
is responsible. It seems to the writer that before we get 
right standards of living for the community, the whole 
basis of purchase by the consumer must be changed, and 
he believes that the time is almost at hand when this 
would seem practicable. The present basis of purchase 
is, as it has been for centuries, almost wholly a matter of 
price and adaptability to use. The question that the 
buyer asks is, how cheap is the gannent and does it fit. 



218 LAW AND ORDER IN INDUSTRY 

The result of this is a demand on the part of the public 
for " bargains" and inevitably leads to an attitude on the 
part of the retailer of entire indifference to the condi- 
tions or surroundings under which the garment is made. 
The most scrupulous buyer of a department store must 
shut his eyes to the environment under which the gar- 
ment is made. He concerns himself solely with the 
question of price and the style, texture and work in the 
product. Whether it contain germs of disease, or has 
injured the operative in the making, must concern him 
not at all. The result is pressure upon the manufacturer 
from the consumer's end — to manufacture as cheaply as 
possible, regardless of the conditions under which the 
worker operates, and from the same consuming public 
pressure from another direction — higher wages and 
shorter hours for the worker. There is justice in the plea 
of the enlightened manufacturer that he is being squeezed 
between two opposing forces and that he is penalized 
whenever he attempts to raise conditions. The remedy 
would seem to be at hand if all of the parties would 
agree to it, that is, the employer, the employee and the 
public. It is this. Whenever complete and regular 
inspection of an industry is under way by all three par- 
ties, as in the cloak industry, and certificates are issued 
to shops maintaining adequate standards, the chain of 
evidence should be carried one link farther — the garment 
itself should be certified by the Board, so that the con- 
sumer will know what garment is made under "Protocol" 
conditions and what is not. An extensive advertising 
campaign, conducted by both parties, would inevitably 
educate the public to a realization of its responsibility 
for the maintenance of unsanitary conditions. The re- 
sponsibility from consumer to producer would be made 
direct and real and could not be evaded. A label on each 



THE WHITE PROTOCOL LABEL 219 

garment would furnish the purchaser with unmistakable 
evidence of its conformance or non-conformance with 
the standards of living maintained by the best in the 
industry. Already in the cloak industry, the union is 
making a campaign throughout the country for the 
exclusion from the industry of what is called " Non- 
Protocol" cloaks; that is to say, for the exclusion of 
garments made in factories that have not come under the 
Protocol. This work is ineffective now because there is 
no way of furnishing the consumer with prompt and 
satisfactory evidence of the facts concerning each gar- 
ment. The retailer to-day is not called upon to distin- 
guish between " Protocol" cloaks and " Non-Protocol" 
cloaks. Looking at the situation critically, it would seem 
that the work of controlling the label is no more difficult 
than the work of controlling the shop. It is a mere exten- 
sion of the principle of certification.* 

The idea gained favor with manufacturers and union 
leaders. When it was first presented, it met with the 
general approval of the leading cloak manufacturers. 
It was opposed by the union leaders. Gradually, they 
began to see its value, until in 1913, when in drawing 
the Protocol in the dress and waist industry, I secured 
the acceptance of both sides to the following: 

To make more effective the maintenance of sanitary 
conditions throughout the industry, to insure equality of 
minimum standards throughout the industry, and to 
guarantee to the public garments made in the shops 
certificated by the Board of Sanitary Control, the parties 

* " Control of Sanitary Standards," published by National Conference 
of Charities and Corrections, 191 2. 



220 LAW AND ORDER IN INDUSTRY 






agree that there shall be instituted in the industry a 
system of certificating garments by a label to be affixed 
to the garment. Recognizing the difficulties of working 
out the details of such a plan at this time, but believing 
that the plan has been sufficiently developed and con- 
sidered in the Cloak Industry, they believe that a com- 
plete plan can be worked out in the Dress and Waist 
Industry within a year. To this end each party agrees 
to cooperate to the full extent of its power in the formu- 
lation and effectuation of a system for the certification of 
garments adequately safeguarding the employers, the 
workers, and the consuming public* 

In 191 5, the Board of Arbitration in the Cloak In- 
dustry, reviewing the difficulties of that industry, and 
mindful of the necessity for equal enforcement of stand- 
ards through the industry, said: 

We are dealing specifically with the problems of only a 
part of the garment trade; but your problems are in large 
measure the problems of all industry. You are leaders in 
the attempt to work out these problems, and are entitled 
not only to the sympathetic consideration, but to the 
help of the rest of the community. Protocol conditions 
are conditions which the community desires to have 
established generally. There are scarcely any, whether 
employers or employees or consumers, who do not wish to 
accomplish exactly what those who are in this industry 
are seeking to accomplish by way of bettering the rela- 
tions of employer and employees. Some method ought 
to be devised of enlisting the cooperation of the com- 
munity in the great and difficult task of working out 

* Protocol of Peace in the Dress and Waist Industry, January 18, 1913- 



THE WHITE PROTOCOL LABEL 221 

these problems. The Protocol label has been suggested 
as one of the means of accomplishing such codperation. 
However valuable the suggestion, it is obvious that its 
practical application is a matter of great but not of 
insuperable difficulty.* 

The label has not yet been established. It waits for 
public sentiment. It will not bring the millennium. Its 
efficacy will depend almost entirely upon the consuming 
public. If the women of the country would to-morrow 
with one voice say, "We will not wear clothes that are 
made under unsanitary conditions and unless we are cer- 
tain that the workers who have them receive proper 
wages and fair treatment/ 9 they would accomplish in 
twenty-four hours a bloodless revolution. They would, 
by this one act, save enough waste in strikes and lock- 
outs, ultimately to reduce the cost of their garments and 
would, at the same time, raise working conditions higher 
than all the state and local Factory and Health Boards 
have done in twenty years. No manufacturer could af- 
ford to do without the label — no department store could 
sell any other than labelled garments. We should be cer- 
tain, too, that neither association nor union would be un- 
reasonable or arbitrary or anarchical. The public would 
be represented and would bring pressure to bear where 
it was justified. The Board of Arbitration would have a 
sheriff, and the withdrawal of the label (after fair hearing) 
* Decision of Board of Arbitration, January 21, 1915- 



222 LAW AND ORDER IN INDUSTRY 

would be sufficient enforcement of a decision, and would 
be as effective against the non-association employer as 
association discipline is now effective against the associa- 
tion member. 

In Chapter VII, in reviewing the Chicago experience, 
we set down the following tentative hypothesis: 

The consumer is an important factor in the problem. 
Of course, care must be taken to prevent fraud in the 
use of the label, and to see to it that it acquires its full 
value through thorough and systematic advertising. If 
it received the support of the women of the country 
the additional fee for each label would bring in more 
than enough to pay for all the advertising and the main- 
tenance of the machinery of administration. 

To-day there is no machinery for enforcing standards 
throughout the entire industry. The shop strike, the 
general strike is futile. 

In the August Garment Worker (immediately follow- 
ing the adoption of the recommendations of the Mayor's 
Council) appears the following: 

EQUALIZING CONDITIONS THROUGHOUT THE COUNTRY 

The need of equalizing conditions throughout the 
country is as great as ever, and President Schlesinger 
intends forthwith to start on an organizing tour to 
Middle Western centers of our industry to supervise 
urgent movements for better conditions.* 

* The Ladies' Garment Worker, August, 1915, pp. 5, 6. 



THE WHITE PROTOCOL LABEL 223 

Who should be against the Protocol label? Those who 
believe in the power or force theory — those unionists 
and those employers who each have the same fear — the 
fear of the consequence of joining permanently in the 
establishment of a joint asset and who prefer a the good 
old " pre-Protocol days? Of course, there may be de- 
partment store managers so short-sighted as to fear the 
consequences to them of this control of the industry 
by the worker, the manufacturer and the consumer. 
But the wise and far-sighted department store manager 
will think differently. It took a long time for adver- 
tisers of meritorious wares to realize that telling the 
truth had a commercial value. It has taken a long time 
for advertising mediums to realize that publishing truth- 
ful advertisements was of commercial value. Now we see 
a New York daily building up its entire advertising power 
through: first, its guarantee of the complete truthfulness 
of representations made in its columns by advertisers, 
and secondly, by a campaign generally against fraudu- 
lent advertising. Another is specializing in foods, giving 
the strength of its approval to such as stand the test 
of its own investigation and attacking those who fall 
below standard. The first department store head who 
will thoroughly realize the commercial value of squarely 
meeting the demand of the consumer for garments made 
under sanitary and fair conditions, will secure a reputa- 
tion and standing that will put him in advance of his 



224 LAW AND ORDER IN INDUSTRY 

competitor. The first mail-order house that offers to 
the country shirt waists certified to by representatives 
of the workers, the employers and the consumers as 
having been made under sanitary and fair conditions, 
will establish a tremendously valuable clientele. A little 
specialty house in the retail dry goods district of New 
York found it to advantage to put in its advertisements: 
"A member of the Dress and Waist Manufacturers' As- 
sociation. Garments made under sanitary conditions." 

The White Protocol label is more than a consumer's 
label. It is a producer's label. If it be true that more 
than seventy-five per cent of the garments are worn by 
working men and working women, are they not interested 
in the maintenance of sanitary and fair conditions of 
work? It is more than the union label, for the reason 
that it is not a dispensation by the union, based upon a 
determination made by the union. 

Here, then, is something to consider and weigh. If the 
public is interested in preserving peace in industry and 
securing the welfare of working people, why should it 
not make its great power effective? The Chicago brand 
gave to the clothing concern the power to meet its com- 
petitors effectively. Why not create a brand that con- 
sumers will award to those who observe the law and thus 
make society's aim square with the aim of legitimate 
business? 



CHAPTER XXI 

A FEDERAL INDUSTRIAL COUNCIL 

Study of the proceedings and report of the Industrial 
Council of Great Britain* led me to the conviction that 
at the root of the difficulty in both the making and ob- 
servance of joint agreements lay the problem of equal 
enforcement of standards throughout the industry. I 
found that the Council had considered various methods 
proposed, and that on the whole, the best opinion seemed 
to be (as quoted on p, 202) in favor of extending the 
standards by law to cover the entire industry. J. Ram- 
sey MacDonald in 191 2 introduced in Parliament a Bill 
(Appendix E) covering the Port of London, which pro- 
vided that where an agreement was "come to volunta- 
rily" by employers and workmen, and covered sufficient 
numbers, the standards of wages, or hours, or conditions 
of employment should be "the implied terms of every 
contract for employment of a workman in the Port of 
London." The bill, though hardly in form to meet the 
requirements of our Constitution, furnished the basis for 
a tentative recommendation I submitted to the United 

* Bulletin 133, U. S. Department of Labor. 
225 



226 LAW AND ORDER IN INDUSTRY 

States Industrial Relations Commission in 1914 (Ap- 
pendix F). 

It seemed to me that if, under the jurisdiction of Con- 
gress over interstate commerce, we could create a national 
industrial board, constituted of leading trades unionists, 
employers and public men and women, we should find a 
method for applying intelligently and constantly to trade 
agreements the force of public opinion and at the 
same time utilize Federal power in making such agree- 
ments "voluntarily come to" binding upon the unscrupu- 
lous and illegitimate minority employer. Such a board 
could at any time, at the instance of either party, review the 
conduct of both parties and make findings based thereon. 
If the agreement were in the public interest and the 
Board so certified, its certificate could be made presump- 
tive evidence of good faith protecting both parties against 
harassing litigation. In addition, the failure of either 
an employers' association or a trades union to observe 
the agreement would result in public disapproval and be 
sufficient ground for refusal to approve subsequent agree- 
ments. The trades union or employers' association which 
observed treaties would be encouraged, and the other 
kind gradually driven out. In addition, to make the 
standards " voluntarily come to" of a clear majority 
of the industry on both sides binding upon all in the in- 
dustry and to do it by law, instead of by force — after 
full opportunity for hearing to the minority — seemed to 



A FEDERAL INDUSTRIAL COUNCIL 227 

be a more rational way of getting and maintaining de- 
cent standards. As to hours of labor, such action by the 
Board would be in the nature of legislation fixing con- 
ditions of labor, and as to minimum standards of wages 
would be in nature the same as the action of minimum 
wage boards. As to the constitutionality of such an 
act with reference to wage standards for men, though I 
am familiar with the decisions adverse, I believe that 
even here the time is coming when this kind of legislation 
will be upheld. (Although the courts have sought to 
distinguish between men and women upon the ground of 
the physical differences in sex, there seems to me to be 
no inherently sound legal reason for denying to men the 
same protection that is granted to women.*) Since the 
recommendation was made, there has been created the 
Federal Reserve Board, with broad supervisory powers 
over our banking institutions, and a Trade Commission 
with similar supervision over trade agreements. We 
have already come to the time when we freely acknowl- 
edge the right of the entire country to insist that no part 
shall break down through interstate commerce the living 
standards necessary for the protection of the whole 
people. This is the basis of our Federal pure food and 
health laws, and we shall ultimately apply the same 
reasoning to laws regulating the working conditions of 

* The principles of " Fatigue and Efficiency " (Goldmark) apply to 
men as well as to women. 



228 LAW AND ORDER IN INDUSTRY 

labor. If we give the principal factors in each industry, 
i. e. y the majority employers and the majority workers the 
first say, by permitting them to come to joint agreements 
voluntarily, and then guarantee them against the un- 
dermining of standards by unscrupulous competitors, 
we shall be rendering the entire country a real service. 
We shall hasten the day of industrial welfare as well 
as industrial peace. The outline submitted to the In- 
dustrial Relations Commission is not submitted here as a 
final plan, nor is it the purpose of this chapter to make 
immediate propaganda for it. I am conscious that we 
are a long way off from an exact piece of legislation upon 
the subject. But the realization that it took us more 
than half a century to work out sound currency legisla- 
tion makes me confident that some day there will come 
Paul Warburgs into industry who will find the means of 
preventing the losses of industrial warfare as in the enact- 
ment of the Federal Reserve Act we have prevented the 
losses of financial panics. The suggestion is reprinted 
for reflection. If it inspires others to think in the same 
general direction, it will have accomplished its purpose. 

We must not rest content with present alternatives. 

We must invent new ways. If we have not yet found 
the right ones, we must try until we do find them. But 
we must not wince if the facts as we face them are not 
wholly to our liking. 



CHAPTER XXII 



VISION AND EFFORT 



The man of reflection, detached from interest or ac- 
tivity in a given social or political situation, has the ad- 
vantage of long-range perspective and by virtue of his 
detachment and disinterestedness may be a safe guide. 
But if the man of action pays the penalty of short range 
vision, he at least has a firmer base in the intimate knowl- 
edge of the factors of the situation. The true combina- 
tion for statesmanship is, of course, to be found in an 
alignment of both. 

Of the students of industrial problems, those who 
speak with the authority of deep reflection agree that 
progress lies in the direction of greater industrial de- 
mocracy. John Graham Brooks, after a review of Ameri- 
can Syndicalism, writes that the remedy for lawlessness 
and the way to peace and welfare of all concerned is in 
"the open, declared purpose to admit labor to manage- 
ment first at safe and possible points" — note the quali- 
fying words — "with all that this means of banished 
secrets; to admit it fearlessly and with no reserves as 
far as labor proves its fitness; * we then and there connect 

* Italics ours. 
229 



230 LAW AND ORDER IN INDUSTRY 

ourselves with the cooperative regime." This, he says, 
"does not close the fist, it opens the arms." And to 
adopt this policy of including labor "in the control of 
business" requires not only that we give it "every 
opportunity of training to this end" but will require 
"the severe schooling of a century." I agree with him 
in his estimate of time. "But," says Professor Brooks, 
"every strong man who openly sets his face that way, 
who tries consentingly and forbearingly to prove the 
policy wise is the helper to whom we look." * 

Two other clever students, Englishmen (Watney and 
Little) write in a book entitled "Industrial Warfare" that 
"Industrial unrest cannot be treated as an isolated irre- 
sponsible manifestation." True. . . . " it assumes spe- 
cific forms according to its local conditions, and more 
particularly to its method of treatment by those who have 
the power to influence it." So we find in the experiences 
dealt with in this book. " Nothing," say they in England, 
"can do more harm to the body politic than a policy 
of unreflecting and intractable hostility from above to the 
impulses and aspirations from below; you cannot with 
safety — and the truism is so apt that it barely needs 
apology — 'sit on the safety valve.'" Quite right. 
Now observe the complementary thought: "At the 
same time, nothing can do less harm to it than the policy 
of unreflecting and uncompromising hostility from below 
♦John Graham Brooks: "American Syndicalism," p. 252. 



VISION AND EFFORT 231 

to the just claims and due recognition of the great 
directing and controlling influences in the business of the 
country, provided the latter realize that, with the devel- 
opment of thought and the advancement in the popular 
ideals of happiness and comfort, has come a greater and 
legitimate desire on the part of the worker for better 
all-round opportunities for both himself and his class."* 

Mr. Brandeis certainly has had opportunity for both 
long and short range observation. Called as an expert 
before the Industrial Relations Commission, he expressed 
the opinion that industrial unrest never could be re- 
moved, "and fortunately never can be removed, by 
mere improvement of the physical and material condi- 
tion of the working man"; that we must bear in mind 
all the time that no matter how much one may wish 
for material improvement and must desire it for the indi- 
vidual's comfort, "we are a democracy" and therefore, '''we 
must have, above all things, men" And, accordingly, he 
believes that it is towards the development of manhood 
that any industrial or social system must be directed. 
Not only are we committed, in our country, Mr. Brandeis 
told the Commission, to "social justice in the sense of 
avoiding things which bring suffering and harm and un- 
equal distribution of wealth; but we are committed 
primarily to democracy, and the social justice to which 
we are headed is an incident of our democracy, not an 

* Charles Watney and James A. Little: " Industrial Warfare," pp. 8, 9. 



232 LAW AND ORDER IN INDUSTRY 

end itself. It is the result of democracy, but democracy 
we must haw." * Therefore, said Mr. Brandeis, we must 
recognize industrial democracy "as the end to which we 
are to work." And that means to Mr. Brandeis what it 
means to Professor Brooks, "the problems are not any 
longer, or to be any longer, the problems of the employer. 
The problems of his business — it is not the employer's 
business." f This same thought was in the minds of a 
group of ministers and leading citizens of New York,J 
who said to a group of (men's, not women's) clothing 
manufacturers in 191 2 who refused to confer or arbitrate 
with the union: "You seem to think that your particular 
business, and the capital you have therein invested, 
should be your main consideration; whereas the public, 
while desiring your welfare, insists also that you shall 
take such steps as are necessary to secure conditions which 
are now recognized as indispensable in those industries 
where employers and employees are at peace. Such 
being the present state of the public mind, is it not for 
your own interest to be more forward in taking such 
steps as the public now expects of you? " § Mr. Brandeis 
said also — doubtless influenced by his experience as 

* Italics ours. 

t Report of Federal Commission on Industrial Relations (19 15), 
pp. 83-84. 

% Drs. George William Douglas, Frank Oliver Hall, George U. Wen- 
ner, Henry E. Cobb, John Haynes Holmes, Rabbis Samuel Schulman 
and Stephen S. Wise. 

§ Evening Post, February 20, 1913. 



VISION AND EFFORT 233 

chairman of the Arbitration Board in our industry — 
"The union cannot shift upon the employer the respon- 
sibility for the conditions, nor can the employer insist 
upon solving, according to his will, the conditions which 
shall exist; but the problems which exist are the problems 
of the trade; they are the problems of employer and 
employee." * He was repeating here what he had fre- 
quently said as chairman of our Board of Arbitration. 
The ministers and leading citizens said to the clothing 
manufacturers: "And why should you not organize 
also a proper system for settling the daily questions be- 
tween your workers and yourselves in a manner which is 
thoroughly modern, and- takes cognizance of the trade 
conditions, both here and in competing markets, which 
must be considered in order to preserve and develop your 
business in this city, of which all true citizens desire to 
be proud? And further, when questions arise which are 
too large to be settled by this method in your own shops, 
why should you not arrange to refer them to a board 
operating somewhat on the arbitration system of the 
Chamber of Commerce? " f 

Thus is set in apparent conflict the view of the man of 
vision with the man of daily business. The man of 
vision sees not in the remote distance, but in the im- 
mediate present the approach — the inevitable approach 

* Report of Federal Commission on Industrial Relations (191 5), p. 84. 
^Evening Post, February 20, 19 13. 



234 LAW AND ORDER IN INDUSTRY 

of industrial democracy. The man of daily business 
sees ahead only the shoals and rocks upon which industry 
may be wrecked. How shall we reconcile them? For 
reconciled they must be if progress is to be made. Rec- 
onciliation of these views is statesmanship in industry. 
It was Lloyd George's job in England — a thankless one 
at best. We shall be obliged to record repeated failure 
before we succeed. 

Writing in 1866 (just after our Civil War), Lord Acton, 
realizing that "the experience of the Americans is nec- 
essarily an impressive lesson to England," wondered 
whether the Americans would be successful in revers- 
ing "the verdict of history," "that that which ancient 
Rome and modern France attempted and failed to ac- 
complish is really impossible; that Democracy, to be 
consistent with liberty, must subsist in solution and com- 
bination with other qualifying principles, and that complete 
equality is the ruin of liberty, and very prejudicial to the 
most valued interests of society, civilization and religion" * 

* If they (the Americans) could demonstrate that to be possible which 
was deemed a chimera, because it is contradicted by the experience of 
ages, — if they showed us that the objects aimed at by our political and 
social system may be enjoyed still more amply without the penalty 
which Europe has always paid, in the shape of so much iniquity and 
so much suffering, by irresponsible authorities, sanguinary wars, and 
wanton injury, in the oppression of class by class, of race by race, and of 
religion by religion, — in the elaborate, deliberate, intentional degrada- 
tion of the weaker party, for reasons of state, or religious zeal, or by the 
pride of blood, or by the blind and resistless action of superior wealth 
and force — if they could exhibit to the world the spectacle of a country 



VISION AND EFFORT 235 

In fifty years the idea of political democracy has found 
deeper roots in England than Lord Acton ever expected. 
In the Far East, in China, political democracy as an ideal 
takes root but fails to live. If recent experiences have 
taught us anything, it is the lesson that to apply ideals, 
without taking account of the actual facts, spells failure. 
Our own American political scientist, called as expert 
adviser by the Chinese Government, says: "China's 
history and traditions, her social and economic conditions, 
her relations with foreign Powers, all make it probable 
that the country would develop that constitutional 
government which it must develop if it is to preserve its 
independence as a State more easily as a monarchy than 
as a republic." * But we need not go to China for our 
lessons in the failures of democracy. We have failed in 
municipal politics and we know that we have failed. We 
are gradually learning to understand why we failed. We 
have failed in state politics. Our late senior Senator f in 
his keen analysis of the effect of "invisible government" 
upon state management furnished no new information 

as extensive as Russia, as secure from aggression as France, as intellec- 
tual as Germany, as free and as obedient to law as Great Britain, cursed 
with no restrictions on personal freedom, without fleets or armies, with- 
out pauperism or national debt, — if, in short, America could give the 
light without the shade of political life, then I believe that the venerable 
institutions of European polity would go down before that invincible 
argument. Lord Acton: "Historical Essays and Studies," Chapter IV; 
"The Civil War in America," pp. 125, 126. 

* Prof. Frank L. Goodnow: New York Sun, September 27, 1915. 

t Elihu Root: Constitutional Convention, New York, 1915. 



236 LAW AND ORDER IN INDUSTRY 

to the reformer who has actual experience in politics. 
Frankly facing all of these known failures in political 
democracy, we go on with our faith as we did before 
Lord Acton wrote, and as we did afterwards — some- 
times we go on with but Stevenson's 

Half of a broken hope for a pillow at night 

That somehow the right is the right 

And the smooth shall bloom from the rough. 

With our failures in industrial democracy, we act dif- 
ferently. If the scheme does not work one hundred per 
cent perfect, we abandon our whole faith. Why? There 
is a difference. We accept political democracy as some- 
thing fixed; something here and now, never to be aban- 
doned as an ideal and to be wrestled with in practice; to 
be worked out at whatever cost; and we accept industrial 
democracy as nothing but a dream of the future. We 
have no fixed public policy on the subject. Not until 
individual men are thrown into the vortex of a huge 
industrial conflict — until they grip the very vitals of 
industry — do they realize the nearness of a new order of 
industrial society and their utter unpreparedness for it. 
The average employer knows nothing about " industrial 
democracy." To him it spells nothing but Socialism, 
with a capital "S." "Let everybody mind his own busi- 
ness and I will mind mine," says he. The intrusion of 
social workers, literary gentlemen, religious leaders, into 



VISION AND EFFORT 237 

his labor difficulties, is to him utterly uncalled for. " We 
know our business better than these ladies and gentlemen. 
Why don't they leave us alone?" The truth is that the 
employer who knows nothing and cares less about " in- 
dustrial democracy, " and sticks to it, is the most con- 
sistent and logical of all. He starts with but one simple 
object — that is, profits — and he persists. Labor, like 
material, is for him regulated by the "law of supply and 
demand." If he drives hard bargains with his customers, 
he sees no reason for not doing the same with his workers. 
When the workers organize into a union it is against his 
interest. It gives them a power with which to oppose 
his power. Therefore, quite consistently, he turns his 
attention to preventing the formation of such an organ- 
ization. And if spies or law breaking are necessary to 
accomplish the result, why, of course, he must not be 
squeamish about it. It is the employer of imagination, 
of education, who carries, in industry as elsewhere, the 
pains of birth in bringing forth new ideas and new in- 
stitutions. For example, once he accepts the principle 
that workers, like employers, have the right to organize 
and deal collectively, he is gone — as we have seen both 
in Chicago and in New York. If he starts forward, he 
can never turn back, no matter what the cost. And 
he will find cold comfort in much of the company of his 
colleagues. 
Recent studies are to the effect that the savage is our 



238 LAW AND ORDER IN INDUSTRY 

mental equal. "One may display as much intelligence 
in tracking a kangaroo through the bush as in solving a 
problem in algebra." * The difference between the 
civilized man and the savage is in the imagination. 
"Civilized races are progressive and their systems of 
thought and life are changing, but the savage prefers to 
remain fixed in the culture of a long past age, which, 
conserved by the inertia of custom and sanctified by 
religion, holds him helpless in its inexorable grasp. Im- 
agination rules the world, and the world to the savage is 
dominated by a nightmare of tradition. . . ." When a 
man of imagination steps in among the Fijis, the wonder 
is that they do not eat him alive. It is the man of 
imagination in industry whom we must help, whose bur- 
dens we must lighten, for upon him depends much of the 
progress to be made in the immediate future. Let us 
then frankly admit that we are, in truth, unprepared for 
the new order of industry. Let us seek, so far as prac- 
ticable, to avoid repetition in industry of the costly 
failures of democracy in politics. We do not need the 
lesson of far-off China to teach us. // does not pay in the 
long run to travel faster than existing economic and psycho- 
logical conditions will warrant. 

If the United States Commission on Industrial Re- 
lations had but given us a full and complete survey of 
the experiences of this country in collective bargaining 

* "History of Fiji," Dr. A. G. Mayer, Popular Science Monthly, 1915- 



VISION AND EFFORT 239 

to match the report of the Industrial Council of Great 
Britain upon the same subject, we should have had a 
larger background of experience for our perspective. 
However, the experiences reviewed in these pages may 
at least contribute an approximate inventory of failure 
and success in one difficult and complex industry from 
which we may learn. Let us enumerate roughly : — 

The General Strike eliminated. 

The "Closed Shop" eliminated. 

The judicial and legislative method of determining 
controversy accepted. 

The value of organization on both sides appreci- 
ated. 

Better sanitary and working standards. 

Success in joint effort where the effort is whole-hearted. 
Failure where it is not. 

Success in applying new institutions based upon Law 
and Order. 

Elimination of the "right to the job." 

Recognition of "efficiency and economy as a duty of 
worker as well as employer in industry." 

Failure to equalize competitive labor conditions. 

Failure to eliminate sporadic shop strikes. 

Failure to secure whole-hearted and mutual endorse- 
ment of the plan by both organizations. 

In 1910 the cloak industry of New York fights out the 
"closed shop " issue. The modus vivendi of the " pref eren- 



240 LAW AND ORDER IN INDUSTRY 

tial union shop" then adopted makes peace possible in 
Chicago, in Boston, in Philadelphia and in seven or 
eight other industries. 

In 1 91 5 the cloak industry of New York fights out the 
battle over "the right to the job." The solution (the 
findings of the Mayor's Council of Conciliation) furnishes 
the basis of settlement in other cities.* 

Thus the industry suffers that others may progress. 
Its very failures help to make for progress. The verdict 
must be that the experiences were successful — are now 
successful. If the business results were not as good as 
the sanitary and social results, it meant that we had not 
yet found the complete harmonization of all the ideals 
nor the perfect modus vivendi. But shall we not be en- 
couraged by our great successes (considering the difficul- 
ties) almost beyond our dreams? 

The further experiences of this industry, like those of 
the past five years, must be of profit to the industries of 
this and other countries. Effort must be made — constant 
effort. Vision and faith alone will not suffice. Invention 
of new methods — constant attention to all the factors of 
the problem — or we shall go back as certain as without 
similar effort we shall go back in our politics. There is 
one safe rule — not to deceive ourselves. Bravely to set 
failure side by side with success. And when all is in- 

* Chicago agreement, Women's Wear, September 27, 1915 — Boston 
agreement, Women's Wear, September 22, 1915. 



VISION AND EFFORT 241 

ventoried, both the failures and the successes, to retain 
the faith of the men of vision — for blundering though 
our steps may be, their light does shine and must lead on. 
We shall learn by doing. We cannot go back to savagery 
in industry, whatever it costs to go forward. 



APPENDIX A 
TEXT OF THE PROTOCOL AGREEMENT 

Made September 2, igio 

Protocol of an agreement entered into this 2d day 
of September, 1910, between the Cloak, Suit and Skirt 
Manufacturers' Protective Association, herein called the 
manufacturers, and the following locals of the Inter- 
national Ladies' Garment Workers' Union, namely: 
Cloak Operators' Union No. 1, Cloak and Suit Tailors' 
No. 9, Amalgamated Ladies' Garment Cutters' Associa- 
tion No. 10, Cloak and Skirt Makers' Union of Browns- 
ville No. n, New York Reefer Makers' Union No. 17, 
Skirt Makers' Union No. 23, Cloak and Skirt Pressers' 
Union No. 35, Buttonhole Makers' Union of New York 
(Local No. 64), Cloak and Suit Pressers of Brownsville 
No. 68, hereinafter called the unions. 

Whereas differences have arisen between the manu- 
facturers and their employees who are members of the 
unions with regard to various matters which have re- 
sulted in a strike, and it is now desired by the parties 
hereto to terminate said strike and to arrive at an 
understanding with regard to the future relations be- 
tween the manufacturers and their employees, it is 
therefore stipulated as follows: 

First. So far as practicable, and by December 31, 
1910, electric power be installed for the operation of 
machines, and that no charge for power be made against 
any of the employees of the manufacturers. 

243 



244 APPENDIX A 

Second. No charge shall be made against any em- 
ployee of the manufacturers for material except in the 
event of the negligence or wrongful act of the employee 
resulting in loss or injury to the employer. 

Third. A uniform deposit system, with uniform de- 
posit receipts, shall be adopted by the manufacturers, 
and the manufacturers will adopt rules and regulations 
for enforcing the prompt return of all deposits to em- 
ployees entitled thereto. The amount of deposit shall 
be$i. 

Fourth. No work shall be given to or taken to em- 
ployees to be performed at their homes. 

Fifth. In the future there shall be no time contracts 
with individual shop employees, except foremen, de- 
signers, and pattern graders. 

Sixth. The manufacturers will discipline any member 
thereof proven guilty of unfair discrimination among his 
employees. 

Seventh. Employees shall not be required to work 
during the ten legal holidays as established by the laws 
of the State of New York; and no employee shall be 
permitted to work more than six days in each week, those 
observing Saturday to be permitted to work Sunday in 
lieu thereof; all week workers to receive pay for legal 
holidays. 

Eighth. The manufacturers will establish a regular 
weekly pay day and they will pay for labor in cash, and 
each piece worker will be paid for all work delivered as 
soon as his work is inspected and approved, which shall 
be within a reasonable time. 

Ninth. All subcontracting within shops shall be 
abolished. 

Tenth. The following schedule of the standard mini- 
mum weekly scale of wages shall be observed : 



TEXT OF THE PROTOCOL AGREEMENT 245 

Machine cutters $25 

Regular cutters 25 

Canvas cutters 12 

Skirt cutters 21 

Jacket pressers 21 

Underpressers 18 

Skirt pressers 19 

Skirt underpressers 15 

Part pressers 13 

Reefer pressers 18 

Reefer underpressers 14 

Sample makers 22 

Sample skirt makers 22 

Skirt basters 14 

Skirt finishers 10 

Buttonhole makers, class A, a minimum of $1.25 per 

100 buttonholes. 
Class B, a minimum of 80 cents per 100 buttonholes. 
As to piecework, the price to be paid is to be agreed 
upon by a committee of the employees in each shop, and 
their employer. The chairman of said price committee 
of the employees shall act as the representative of the 
employees in their dealings with the employer. 

The weekly hours of labor shall consist of 50 hours in 
6 working days, to wit, 9 hours on all days except the 
sixth day, which shall consist of 5 hours only. 

Eleventh. No overtime work shall be permitted be- 
tween the 15th day of November and the 15 th day of 
January or during the months of June and July, except 
upon samples. 

Twelfth. No overtime work shall be permitted on 
Saturdays except to workers not working on Saturdays, 
nor on any day for more than two and one-half hours, 
nor before 8 A. m. nor after 8.30 p. m. 



246 APPENDIX A 

Thirteenth. For overtime work all week workers shall 
receive double the usual pay. 

Fourteenth. Each member of the manufacturers is to 
maintain a union shop; a " union shop" being understood 
to refer to a shop where union standards as to working 
conditions, hours of labor and rates of wages as herein 
stipulated prevail, and where, when hiring help, union 
men are preferred; it being recognized that, since there 
are differences in degrees of skill among those employed 
in the trade, employers shall have freedom of selection 
as between one union man and another, and shall not be 
confined to any list, nor bound to follow any prescribed 
order whatever. 

It is further understood that all existing agreements 
and obligations of the employer, including those to pres- 
ent employees, shall be respected; the manufacturers, 
however, declare their belief in the union, and that all 
who desire its benefits should share in its burdens. 

Fifteenth. The parties hereby establish a Joint Board 
of Sanitary Control, to consist of seven members, com- 
posed of two nominees of the manufacturers, two nomi- 
nees of the unions, and three who are to represent the 
public, the latter to be named by Meyer London, Esq., 
and Julius Henry Cohen, Esq., and, in the event of their 
inability to agree, by Louis Marshall, Esq. 

Said board is empowered to establish standards of 
sanitary conditions, to which the manufacturers and the 
unions shall be committed, and the manufacturers and 
the unions obligate themselves to maintain such stand- 
ards to the best of their ability and to the full extent of 
their power. 

Sixteenth. The parties hereby establish a Board of 
Arbitration to consist of three members, composed of 
one nominee of the manufacturers, one nominee of the 



TEXT OF THE PROTOCOL AGREEMENT 247 

unions, and one representative of the public, the latter 
to be named by Meyer London, Esq., and Julius Henry 
Cohen, Esq., and, in the event of their inability to agree, 
by Louis Marshall, Esq. 

To such board shall be submitted any differences 
hereafter arising between the parties hereto, or between 
any of the members of the manufacturers and any of 
the members of the unions, and the decision of such 
Board of Arbitration shall be accepted as final and con- 
clusive between the parties to such controversy. 

Seventeenth. In the event of any dispute arising 
between the manufacturers and the unions, or between 
any members of the manufacturers and any members of 
the unions, the parties to this Protocol agree that there 
shall be no strike or lockout concerning such matters in 
controversy until full opportunity shall have been given 
for the submission of such matters to said Board of 
Arbitration, and in the event of a determination of said 
controversies by said Board of Arbitration, only in the 
event of a failure to accede to the determination of said 
board. 

Eighteenth. The parties hereby establish a Committee 
on Grievances, consisting of four members composed 
as follows: Two to be named by the manufacturers 
and two by the unions. To said committee shall be 
submitted all minor grievances arising in connection 
with the business relations between the manufacturers 
and their employees. 

Nineteenth. In the event of any vacancy in the afore- 
said boards or in the aforesaid committee, by reason of 
death, resignation, or disability of any of the members 
thereof, such vacancy in respect to any appointee by the 
manufacturers and unions, respectively, shall be filled by 
the body originally designating the person with respect 



248 APPENDIX A 

to whom such vacancy shall occur. In the event that 
such vacancy shall occur among the representatives of 
the public on such boards, such vacancy shall be filled 
by the remaining members representing the public in the 
case of the Board of Sanitary Control, and in the case of 
the Board of Arbitration both parties shall agree on a 
third arbitrator, and in case of their inability to agree, 
said arbitrator shall be selected by the governor of the 
State of New York. 



APPENDIX B 
RULES AND PLAN OF PROCEDURE 

Adopted by the Board of Grievances 



Established under the Protocol of Peace between the 
Cloak, Suit and Skirt Manufacturers' Protective Asso- 
ciation and the various Local Unions represented by 
the Joint Board. 



For brevity, the Manufacturers' Association is herein 
referred to as the " Manufacturers," the Local Unions 
and Joint Board are referred to as the " Unions," and 
where both parties are meant they are referred to as the 
"Parties." 

The Board of Grievances 

I. Immediately upon the adoption of these rules and 
plan of procedure, the members of the Grievance Com- 
mittee, appointed pursuant to the Protocol of Peace, 
shall constitute themselves into a Board, and shall there- 
after be known as "The Board of Grievances." 

Hereafter in these rules it will be referred to as the 
"Board." 

II. The Board shall immediately elect two chairmen, 
one from each side, who shall preside alternately, for two 
weeks. 

249 



250 APPENDIX B 



Term of Office 



III. These officers shall hold office for one year, or 
until their successors are elected. 



Office of Clerks 

IV. The clerks shall hold office for one year or until 
their successors are elected. Each clerk shall appoint as 
many deputy clerks as shall be required for the expe- 
ditious transaction of the business of the Board. 

Upon the written request of any members of the 
Board of Grievances a committee of two, consisting of 
members of the Board or clerks or deputy clerks, one 
representing each side, shall visit any shop for the pur- 
pose of ascertaining whether the provisions of the Pro- 
tocol are being observed, and report on the conditions 
of such shop to the Board. 

V. A chairman shall preside at all meetings. 



Quorum 

VI. The Board shall consist of five members from 
each side. Three members from each party (the Manu- 
facturers and the Union) shall constitute a quorum of the 
Board. 

Regular Meetings 

VII. The Board shall meet regularly at designated and 
appointed times and places once a week. Meetings may 
be postponed by mutual consent and records of such 
postponement shall be recorded on the minutes. 



RULES AND PLAN OF PROCEDURE 251 

Special Meetings 

VIII. Special meetings of the Board shall be called 
only in cases of emergency, or where prompt or imme- 
diate action is necessary, and may be called by the 
chairman of either side. 

Calendar 

EX. The Board shall have a regular calendar at each 
regular meeting. The clerks shall prepare a calendar of 
cases to be disposed of, and such cases shall be disposed 
of in regular order, unless special rules be made by the 
Board. 

Order of Trial 

X. Cases shall be placed upon the calendar in the 
order in which they are received, i. e., in the order of the 
date of the filing of the complaints. 

Trials and Hearings 

XI. No case shall be taken up by the Board until a 
complaint is filed in writing. As soon as a complaint is 
filed the clerks or their deputies shall make every effort 
to adjust the controversies. If the clerks agree their 
decision shall be binding on both parties, but either party 
has the right to appeal to the Board if dissatisfied with the 
decision of the clerks. If the clerks fail to agree on a 
verdict, the complaint, together with the report of the 
clerks, setting forth their findings as to the facts, shall 
be presented at the next meeting of the Board. If the 
reports of the clerks agree, the Board shall then dispose 
of the matter. If issues are raised by the two reports, the 



252 APPENDIX B 

case shall be placed upon the calendar for trial, and the 
issues shall be the issues thus raised by the reports of the 
clerks. At the time of trial both sides shall be heard and 
both parties shall offer their proofs, and the Board shall 
receive and consider them. The Board shall refer dis- 
puted questions of fact to any sub-committee of the 
Board, equally constituted from both parties, who shall 
report their decisions in writing to the Board. If both 
parties agree the decision shall be final; but in case any 
question of principle is involved in the decision, the party 
deeming itself aggrieved may take an appeal to the 
Board of Grievances, which appeal shall be heard by the 
Board of Grievances, as any other matter presented to 
them. 

Decisions 

XII. A majority vote shall be necessary to a decision. 
Both sides shall have an equal number of votes. In the 
event of a failure to arrive at such decision, the issues 
undecided shall be immediately framed and presented to 
the Board of Arbitration, as hereinafter provided. 

Orders and Entries of Decisions 

XIII. All decisions of the Board shall be reduced to 
writing and orders thereon shall be entered by the clerks. 

The filing of an order with the clerks shall constitute 
notice to each party. 

Duplicate Records 

XIV. All records of the Board shall be kept in dupli- 
cate by the clerks, one to be filed with the Manufacturers 
and one to be filed with the Unions. 



RULES AND PLAN OF PROCEDURE 253 

Sanitary Matters 

XV. The Board will not consider any grievances relat- 
ing to sanitary conditions. These should be addressed to 
the Board of Sanitary Control. 

Wrongful Discharge of Employee or Discrimi- 
nation 

XVI. If the grievance arises because of the wrongful 
discharge of an employee, or because of discrimination on 
the part of the employer, the finding of the Board in favor 
of the employee shall entitle him to back pay, in full, 
during the period of his non-employment, pending hear- 
ing and determination of the grievance. 

Shop Strike, Lockout or General Refusal to Work 

XVII. If a grievance arises because of the general 
stoppage of work of a shop or department of a shop, either 
by direction of the employer or because of or by the 
concurrent action of the employees, upon complaint re- 
ceived, the clerks, or their deputies, shall immediately 
proceed to the shop or department where the trouble 
occurs. If the employer is responsible for the stoppage, 
he shall, upon the demand of the clerks, or their deputies, 
immediately recall all his employees, pending the adjust- 
ment by the Board of any grievance he may have, and he 
shall thereupon frame and present his grievance; if the 
employees are responsible for the stoppage, notice shall 
be immediately given to them to return to work pending 
adjustment of the grievance by the Board and the 
chairman of the Price Committee shall immediately 
direct them to return to work. 



;:- APPENDIX B 

Violation or Paragraph XVII of tez Pia:: 

TOCOL 

XVm. A Eolation of the provision of Section XVII 
of these rales h d: 5 : ion XVII of the Protocol, fay 
either employer or employee, shall constitute a grievance 
to be presented to the Board of Grievances. If. after 
hearing, the Board finds the defendant guilty, the order 
of the Board shall be made the basis of prompt discipline 
in the Association or the Unions as the case may be. 
Such discipline shall consist of a suitable fine or expulsion. 
The action so taken shall forthwith be reported in writing 
to the Board of Grievances. 

All names of candidates for membership in the Associa- 
tion shall be submitted by the latter to the Unions before 
the admission of such candidates, in order to afford such 
Unions an opportunity* to acquaint the Association with 
the records of such candidates in respect to the conditions 
of ±eir i:.::;:^ mc ±ei: ::e:nei: :: ezir^ye-rs. 



Posting or Tee si X 



XIX C t ies of the three preceding paragraphs and of 

Sr:;;;r. XVII ;:' :;:e F:;:;;;* iz Er.^lish. .mi ::m^3.::;r-5 

:eof in Italian and Yiddish, shall be posted in evcrf 

shop of the Manufacturers, and in all of the meeting 

rooms of the Unions, immediately upon the adoption of 

this plan. 

Matters ?;r rzz B:ast :? Arbitration 

XX. Mattm I :.: the Board of Arbitration, (a" 
the Board of Grievances shall find after the hearing of 
any case before it. that it cannot arc: decision in 

accordance with the rules herein provided, it shall mime- 



RULES AND PLAN OF PROCEDURE 255 

diately request the Board of Arbitration to convene and 
hear the case. Wherever practicable it shall reduce the 
issue to an agreed statement of facts, or prepare and 
submit for decision specified questions. So far as prac- 
ticable it shall relieve the Board of Arbitration of the 
necessity of taking testimony upon the disputed ques- 
tions of fact. 

General Abuses or Grievances 

(b) If the Board of Grievances shall find any general 
grievances or abuse, which either party has failed, after 
due opportunity, to correct, or if either party fails ade- 
quately to discipline members found guilty by the Board 
of Grievances, such matters may be presented by the 
party aggrieved to the Board of Arbitration for redress, 
either through its counsel or through its officers, and 
the hearings thereon shall be public. 

Conference of Both Parties Called by the Board 
of Grievances 

XXI. Whenever, in the opinion of the Board of 
Grievances, a general situation arises requiring adjust- 
ment by both organizations, or revision or amendment of 
the Protocol, it shall call a conference of both organiza- 
tions by duly authorized representatives to consider and 
discuss such matters. If such conference fails to agree, 
the situation shall be presented to the Board of Arbitra- 
tion for adjustment, pursuant to the terms of the Pro- 
tocol. 

Violation of These Rules 

XXII. Failure to observe any of the provisions of this 
plan and rules shall constitute a grievance to be tried 
before the Board. 



256 appendix b 

Complaint to the Board of Arbitration 

XXIII. Failure to respond in due course to any notice 
given by the clerks shall constitute a grievance to be tried 
before this Board. Repeated violations shall be the 
basis of complaint to the Board of Arbitration. 

Failure to Comply with Orders of This Board 

XXIV. Failure to comply with any decision or order 
of the Board shall constitute a grievance against the 
party to be presented to the Board of Arbitration. 

Neglect of Duty on the Part of Members of the 

Board 

XXV. Neglect of duty on the part of any member on 
the Board shall be a grievance to be presented to the 
Board of Arbitration. 

Disqualification of Members 

XXVI. No member of the Board interested in a case 
shall sit in review thereof. 

Failure to Attend Meeting or Refusal to Vote 

XXVII. Any member of the Board failing to attend a 
meeting of the Board or refusing to vote in a case heard 
by him, shall furnish such explanation, or in case it shall 
be deemed inadequate by either party, the matter may 
be presented to the Board of Arbitration by the aggrieved 
party, either through its counsel or through its officers. 



RULES AND PLAN OF PROCEDURE 257 

Appeals 

XXVIII. Either party deeming itself aggrieved may 
appeal to the Board of Arbitration from any order or 
decision made by the Board of Grievances, upon giving 
notice thereof to the clerks within thirty days after the 
service of a copy of such order or decision. 

Order of Business 

XXIX. Until further revised, the order of business of 
the Board shall be as follows: 

1. Report of clerks on adjusted matters. 

2. New complaints. 

3. Old complaints adjourned for answer. 

4. Trials of issue presented. 

5. Matters for the Board of Arbitration. 

6. Matters for Conferences. 

I, Morris Hillquit, Secretary of the Board of Arbitra- 
tion of the Cloak, Suit and Skirt Manufacturers' Protec- 
tive Association and Cloakmakers' Union, hereby certify 
that the foregoing is a true and complete copy of the rules 
and plan of procedure of the Board of Grievances under 
the Protocol of September 2d, 1910, as amended and 
settled by the said Board of Arbitration. 

Dated, New York, March nth, 191 1. 

Morris Hillquit, 
Secretary. 



APPENDIX C 

DECISION OF BOARD OF ARBITRATION 

January 21 , 1Q15 

Chairman Brandeis: Gentlemen, the Board has 
given consideration to the very able and informing argu- 
ments which have been presented, and is now ready to 
give its opinion. 

There were presented to the Board in this proceeding 
three questions of fundamental importance. The first, 
relating to the respective rights of employers and em- 
ployees in regard to the distribution of work. 

The second, relating to the respective rights of em- 
ployers and employees in regard to the discharge of 
individual employees. 

The third, relating to the respective rights of employer 
and employees in relation to the discharge and employ- 
ment of help in the case of what is called reorganization 
in the shops. 

These questions were submitted to us as questions on 
the one side and the other of alleged existing rights under 
the Protocol. We are consequently called upon to decide, 
judicially, existing rights, and not to legislate, we having 
no power to legislate concerning these matters under the 
present circumstances. 

As we are to pass upon what these rights are under the 
Protocol, it seems necessary that we should consider the 
situation prior to the formation of the Protocol, the cir- 
cumstances which led up to the signing of the Protocol, 

258 



DECISION OF BOARD OF ARBITRATION 259 

what it was expected to accomplish, and what it appears 
to have accomplished, all of course as bearing upon what 
the rights are on the various subjects as to which we are 
requested to render a decision. 

Now, what the situation was which led to the forma- 
tion of the Protocol appears in the request or statement 
presented of the grievances of the Union. The statement 
was presented in July, 19 10, prior to or at the time of 
entering upon the conferences which ultimately led to 
the formation of the Protocol. These grievances, as 
stated by the Union, are as follows: 

"Our main grievances are low wages, unreasonable 
night work, work in tenement houses, the disregarding of 
Sundays and holidays, sub-contracting, discrimination 
against Union men, the irregular payment of wages, the 
exacting of security, the charging for material and 
electricity, and the blacklisting of active Union men. 

"To remedy these grievances, it is in our opinion 
necessary to establish a living standard of wages, to 
regulate the hours of labor, to limit night work, to pre- 
vent work on holidays, to abolish all charges for elec- 
tricity and appliances, to do away with tenement house 
work, to prevent discrimination, to provide for the 
regular payment of wages in cash both by manufacturers 
and outside contractors, to do away with inside sub- 
contracting, to establish a permanent Board of Arbitra- 
tion which is to settle grievances, the Unions and the 
employers to be equally represented on the Board of 
Arbitration, the appointment of shop committees and 
shop delegates. 

"We are ready to enter into a discussion with you of 
these grievances, and if a satisfactory adjustment of 
them is reached, are prepared to recommend a settlement 
of the strike. In the event of such settlement, every 



260 APPENDIX C 

employee who participated in the strike to be reinstated, 
the terms of any settlement which may be reached to be 
reduced to writing and to be signed by both parties 
through their representatives." 

The strike there referred to was a strike which in- 
volved about fifty thousand workers in this trade, and 
upwards of 1,500 employers. Before the agitation which 
led to the strike, only a small part of those fifty thousand 
workers were members of the Union. It was stated at 
the time that there were probably not more than three 
thousand members in good and regular standing before 
the agitation which led to the strike began. 

About July 24, 1910, the conference began which re- 
sulted in the signing of the Protocol on September 2, 19 10. 
That Protocol had four definite purposes. In the first 
place, the Protocol undertook to remove specifically 
the grievances enumerated. That is, the parties met to 
decide by agreement upon the specific things that should 
be done with reference to each of these grounds of com- 
plaint: and each matter agreed upon became a specific 
provision of the Protocol. 

The result of that was to raise the industry as a whole, 
practically each and every part of it, to the standard 
which it is said was already observed by those shops 
in the industry which were most advanced. Its effect 
was to create the uniformly high standing provided by 
the Protocol — which theretofore had been reached only 
in individual instances. 

The second result which was sought by the Protocol 
was to create, through the strengthening of the Em- 
ployers' Association on the one hand, and of the Union on 
the other, bodies which should be able to enforce com- 
pliance with the terms of the agreement which was made. 
It was recognized that without a strong Union of em- 



DECISION OF BOARD OF ARBITRATION 261 

ployees on the one side, and a strong Employers' Associa- 
tion on the other, the agreement could not attain the 
desired results. 

Therefore, each party bound itself to aid the other in 
strengthening the organization of that other, to the end 
that what both had in mind and both purposed, the 
improvement of the conditions in the industry, might be 
effectually carried out. 

In the third place, it was proposed, in creating the 
Protocol, to insure to the individual employee not only 
the compliance with the specific provision named in the 
Protocol, which involved changes in a large part of the 
shops, but to secure to the individual employee, through 
the Protocol, the enforcement of fair, reasonable and 
just treatment by his employer; such treatment which, 
independently of the Protocol, could ordinarily have been 
enforced only through strikes. That is, the Protocol was 
devised to enforce for the benefit of the employee a right 
to fair and just treatment; or, to put it in another way, 
to secure, through the instrumentality of the Protocol, 
the reasonable certainty that the employer would not 
exercise his legal rights oppressively or unfairly. 

In the fourth place, it was the purpose of the Protocol 
to introduce into the relations of the employer and the 
employee a whole new element; that is, the element of 
industrial democracy; that there should be a beginning, 
at least, of a joint control, and with joint control a joint 
responsibility for the conduct of this industry: that we 
should pass from that condition where the employer de- 
termined alone what was to be deemed proper, and where 
the employer alone was held responsible for things that 
were improper in the trade; and that in place thereof we 
should impose upon all those in the trade, the employer 
as well as the employee, the obligation of removing 



262 APPENDIX C 

through constructive work, those conditions which prop- 
erly caused discontent, and which prevented the em- 
ployer and employee alike from attaining that satisfac- 
tory living within the industry which it must be the aim 
of all effort in business to secure. 

It therefore was an essential part of this Protocol that 
it should look forward to improvement; and that the 
condition arrived at, although it was very much higher 
than that which had prevailed before the Protocol was 
adopted, was merely a stage in that development of the 
trade which the parties believed to be possible, that the 
higher steps were to be attained through cooperation, 
through a removal of that sense of antagonism of inter- 
ests which had prevailed, and must necessarily prevail 
under other conditions, and which was believed to be an 
important cause of the discontent and of the unsatisfac- 
tory results hitherto prevailing. 

Those who entered into the Protocol, therefore, looked 
forward to advances and, as has been said in one of the 
earlier opinions of this Board, a constant improvement 
in the condition of the worker was a part of the standard 
to which we were bound to look forward. It was recog- 
nized at that time, that the attainment of the end sought 
required not only the cooperation between this par- 
ticular Union and this particular Employers' Association, 
but involved also the ability on the part of the Union to 
raise the standards in other shops in this city and in other 
places which would naturally be in competition with 
those members of the Protective Association; and the 
effort of the Union was pledged to secure, so far as possi- 
ble, that improvement of standard elsewhere. 

Now, those, as we conceive it, were the purposes sought 
to be accomplished. It was not intended by the Protocol 
to change the relation of the employer to the employee, 



DECISION OF BOARD OF ARBITRATION 263 

otherwise than as I have stated and as is expressly stated 
in the Protocol. In all other respects the legal rights 
were to remain what they had been before. 

The Union, by signing the Protocol, relinquished its 
right to secure by strike more than it was getting, and 
there was substituted for that relinquished power of 
strike, the powers created under this agreement, which 
constitutes a government to control the relations between 
employer and employee. And as this Union and other 
Unions had frequently exercised their right to enforce 
the fair, just and reasonable exercise by the employer of 
his legal rights in regard to the administration of busi- 
ness, and in regard to hiring and discharging, so this 
instrument involved in its creation the right to secure, 
through its provisions, the same thing. But it substi- 
tuted for the strike the machinery of the Protocol as a 
means of securing the fair and reasonable exercise by the 
employer of those rights which were, by law, vested in 
him. 

We are of the opinion, therefore, that underlying the 
Protocol, and of the essence of its existence, must be a 
spirit of fairness, that it must be understood as a basis 
for any proper interpretation of it and application of it; 
that the parties desire by its provisions to promote, 
foster and develop square dealings in all of the relations 
of employer and employee; that its purpose must be 
read in the light of an honest attempt to eliminate un- 
conscionable and unjust conditions in this important 
and necessary relationship; that unreasonable acts or 
demands are not to be expected from either of the parties, 
and that anything of that nature would be in violation 
of the fundamental purpose of the Protocol; that in the 
light of these basic principles, the Board decides, as bear- 
ing upon the questions of discharge: 



264 APPENDIX C 

That no employee who can be considered as a regular 
employee, should be discharged unfairly or without 
reasonable grounds. In other words, that the spirit of 
fairness and the rule of reason be used to determine 
whether or not an employee should be discharged; 

That the right of determining this must in the first 
instance rest with the employer, and that any employee, 
deeming himself unjustly treated, has a right to make 
his complaint and have his grievance heard in the regular 
manner. And in the hearing of such cases, it is under- 
stood that the parties administering the Protocol are to 
look into all the facts and to apply the same standards for 
determining the case, thus eliminating the burden of 
proof from all consideration. 

That statement, and what bears upon the other 
branches, may perhaps be amplified by this further 
statement: 

The power of administration, discipline and discharge 
vested in the employer shall be exercised in a fair and 
reasonable manner, and if the propriety of the action is 
questioned, shall be subject to review. 

The words "fair" and "reasonable," as used herein, 
shall be interpreted in the light of the spirit and of the 
purpose of the Protocol as stated, and that spirit and 
purpose includes, among other things, the following: 

First: To assist the employer in the peaceful and unin- 
terrupted operation of his factory, in establishing and 
maintaining reasonable discipline, and in promoting such 
economy and efficiency of production as may be secured 
by cooperative effort. 

Second: To assist the Union in establishing the strength 
and efficiency of its organization, and raise the standard 
throughout the trade, to the end that the Union power 
may be adequate to carry the responsibilities and perform 



DECISION OF BOARD OF ARBITRATION 265 

the duties imposed upon it by the Protocol, and to pro- 
mote the cooperation and good will between the Union 
and the Association, so essential to the successful opera- 
tion of the Protocol, and to the solution of the problems 
of the industry. 

Third: Subject to the foregoing provisions, to assist 
the individual worker in obtaining such security and 
continuity in his employment, such equity in the dis- 
tribution of work and such fairness of general treatment 
and of conditions as may be possible and practicable, 
having regard to the unavoidable fluctuations and 
exigencies of the work, and the imperfections and limita- 
tions of ordinary human nature by which this enormously 
difficult industry must be administered. 

And as bearing upon the question of what is "fair and 
reasonable," in the division of the work, the following 
may be of assistance as a guide: 

The equal division of work is to be regarded as desirable 
and necessary in this industry, for it must be acknowl- 
edged that it should be made possible for the people 
called into the industry, and who are regularly employed 
therein, to earn a reasonable livelihood, but the principle 
of the equal division of the work is inseparably bound 
up with the principle of control of labor supply. The 
industry may be able to sustain the burden of supporting 
fifty thousand workers while the burden of supporting 
seventy-five thousand might break down the industry. 

This makes it indispensable that the question of the 
control of labor supply must be considered in any per- 
manent treatment of this question. 

We recommend, therefore, that this question shall be 
taken up for consideration and disposition by a joint 
committee. 

You will see, therefore, that in reference to what is a 



266 APPENDIX C 

regular employee and in undertaking to indicate what 
would be a fair and reasonable application of the com- 
monly practiced rule of equitably distributing work, that 
we have not undertaken to lay down a definite rule or to 
express in a specific code what is fair and what is reason- 
able. For we believe that any attempt to define what is 
fair and reasonable with reference to discharge or in the 
administration of the shop, would, in the long run, lead 
rather to injustices than to justice. What is fair and 
reasonable, all things and all interests considered, is 
something which, in the absence of specific agreement 
between the parties, must be left to the judgment of men 
familiar with the particular facts, and the facts will vary 
in particular cases. 

We are confronted with a situation which is similar to 
that with which courts and juries have constantly to 
deal — the question of what is reasonable care, with the 
question of what is reasonable notice, and with the ques- 
tion of what is reasonable cause for action. Any attempt 
to codify what is reasonable would have to make provi- 
sion and take into consideration so many possible condi- 
tions and such remote possibilities that the mind of man 
could not justly determine in advance the rule to be 
applied. Indeed, the rules, if determined in advance, 
would prove so numerous that the mere selection of the 
rule to be applied would present a difficulty almost 
insurmountable. 

It is perfectly possible, however, that in respect to 
certain of the questions bearing upon this subject, the 
parties may come together, and reach an agreement, 
which will in the first instance relieve the employers and 
employees, and then the clerks or the Committee on 
Immediate Action, from the necessity of passing upon 
certain classes of individual cases. The parties could do 



DECISION OF BOARD OF ARBITRATION 267 

this by laying down some rule which should in certain 
well-defined classes of cases be accepted as the reasonable 
and fair course of action. 

And this suggestion as to what parties may be able to 
do in simplifying by agreement the determination of the 
rule to be followed, applies perhaps even more strongly 
to the questions which have been presented to us in 
connection with the reorganization of shops. On that 
subject we feel ourselves unable as stated to lay down any 
rule except that the action shall be what is fair and rea- 
sonable. But it is perfectly possible that if you gentle- 
men will come together in conference to consider certain 
well-defined classes of cases, you may be able to deal 
with them comprehensively, and to that extent narrow 
the field in which the discretion of the employer, of the 
clerk and of the Committee on Immediate Action would 
otherwise have to be exercised. 

We feel, however, that there are other matters even 
more far-reaching, and of deeper significance, upon which 
it is essential that the parties should get together: the 
particular questions in connection with the distribution 
of work, discharge and the reorganization of shops, which 
have brought you here before us. Underlying these 
matters are some fundamental difficulties in the trade, 
for which neither the one side nor the other can be held 
wholly responsible, and for which both sides must, in our 
opinion, be held responsible, not in the sense of being 
culpable for their existence, but in the sense of having the 
responsibility of removing by careful, persistent thinking 
and experimentation, the causes of the trouble. These 
causes cannot possibly be removed by shifting burdens 
from one side to the other. The difficulties and incidental 
suffering are inherent in the trade. And of these difficul- 
ties the three of greatest importance are: 



268 APPENDIX C 

First: the matter of standardizing prices. 

We feel that on the questions of discharge and re- 
organization, particularly, this subject of a standardiza- 
tion of prices has the most definite and indeed controlling 
bearing. At present collective bargaining exists in the 
trade only nominally. There was collective bargaining 
in fixing upon the week rates when this Protocol was 
confirmed; but there is not in any proper sense collective 
bargaining in dealing with the subject of piece rates, and 
the wages of at least three-fourths of the employees rest 
upon piece rates. 

It has been stated here that there ought not to be 
competition within the Union, but we have here in a sense 
1,500 or 2,000 different competing units; for the piece 
prices are made independently in each shop. Some way 
must be found of standardizing prices. It does not seem 
to us to be at all beyond the realm of human achievement 
in this industry to solve that problem. But the members 
of the Union on the one hand, and of the Manufacturers 
on the other, should accept the burden involved in solv- 
ing this problem and devote themselves persistently to 
working out some standard. It is perfectly clear that in 
working out some general standard, they will not be able 
to solve, in many instances, an individual case as satis- 
factorily as one of the two thousand manufacturers 
might satisfy it for himself. But the parties can secure, 
and they must secure, some approach to reasonable 
uniformity in the fixing of piece prices acceptable as a 
working basis. 

The second matter has important relation not only to 
questions of discharge and reorganization, but also to the 
regularization of employment, the question of distribu- 
tion of work. The Board realizes the difficulties inherent 
in that problem as this is a seasonable industry: and we 



DECISION OF BOARD OF ARBITRATION 269 

are convinced, that it is inevitably bound up with the 
question of control of the labor supply. It involves the 
question of apprenticeship in this industry. This in- 
dustry cannot be made either what the employers or the 
employees have the right to insist that it should become, 
unless some way is found, through invention, experi- 
mentation and broad processes of education, of mitigating 
in large measure the present barbaric conditions which 
prevail in this industry. The irregularity of employment 
not only involves terrible waste for employer and em- 
ployee, and ultimately for the community also, but also 
brings about unhappiness and demoralization on the part 
of all affected by it. 

Third, and as bearing upon the possible solution of 
these questions, and also the necessary relation of these 
Protocol shops with those who are outside the Protocol, 
whether in this city or any other cities, the Board recom- 
mends the careful consideration by the parties of the 
Protocol label. 

The achievements of the past four years and a half 
in which those engaged in this industry have been en- 
deavoring to work out their problems, and in a certain 
sense the problems of all industries, justify them in 
calling upon the public to aid in making possible the 
solution of the problems involved. We are dealing 
specifically with the problems of only a part of the gar- 
ment trade; but your problems are in large measure the 
problems of all industry. You are leaders in the attempt 
to work out these problems, and are entitled not only to 
the sympathetic consideration, but to the help of the rest 
of the community. Protocol conditions are conditions 
which the community desires to have established gen- 
erally. There are scarcely any, whether employers or 
employees or consumers, who do not wish to accomplish 



270 APPENDIX C 

exactly what those who are in this industry are seeking 
to accomplish by way of bettering the relations of em- 
ployer and employees. Some method ought to be demised 
of enlisting the cooperation of the community in the 
great and difficult task of working out these problems. 
The Protocol label has been suggested as one of the 
means of accomplishing such cooperation. However 
valuable the suggestion, it is obvious that its practical 
application is a matter of great but not of insuperable 
difficulty. 

We believe that that fourth purpose, stated at the 
outset of the Protocol, of the careful working together by 
the two parties of the problems of this industry, as being 
joint problems of employer and employee, is the key to 
the ultimate solution of most difficulties. New questions 
will constantly arise, partly because of the changes which 
come in the trade from time to time, and more largely, it 
is hoped, because of the growing demand which should 
properly be made for an improvement in the condition of 
the worker. But those problems can never be adequately 
solved; the relief can never be given to any appreciable 
extent by the shifting of the burdens either from the 
employers to the employees, or from the employees to the 
employers. We may all look forward to the time — as was 
suggested in one of the papers read here — when labor 
will employ capital, instead of capital employing labor; 
but whether labor employs capital or capital employs 
labor, we must meet the fundamental problem of ade- 
quate production — of such an increase of productivity 
and diminution of waste as shall make the total product 
sufficient to reasonably satisfy the desires as well as needs 
of those actually engaged in the industry. In the opinion 
of the Board, it is necessary that the parties should be 
constantly directing their attention to the improvement 



DECISION OF BOARD OF ARBITRATION 271 

of fundamental conditions. We realize that in this in- 
dustry, with all of its difficulties, and with the very large 
number of persons engaged in it as the employers and 
employees, there will inevitably be many persons who 
consider themselves aggrieved, and many who are ac- 
tually aggrieved. We believe that every case in which 
an employer or employee considers himself aggrieved, 
should receive careful and adequate consideration; be- 
cause that is an essential part of the Protocol, indeed 
the life of the Protocol. Nevertheless that it ought to be 
possible now to devise methods and means so as to re- 
lease the energies and the time of those who are best able 
to give attention to the larger problems of the industry. 
The individual grievances should be investigated and 
adjusted mainly through the efforts of the clerks or the 
Committee on Immediate Action. The time of the other 
officers in high stations among both employers and em- 
ployees should be reserved for the consideration of the 
fundamental difficulties referred to, and the solution of 
which seems to us to be absolutely necessary to the 
satisfactory adjustment of the mutual relations, and a 
satisfactory result to all concerned. 

There are a few words that perhaps could be added to 
what I have said, on the one hand by Mr. Thompson, 
and on the other by Mr. Holt. 

Mr. Thompson: It perhaps might properly be said at 
this time, in regard to the third proposition which was 
submitted to the Board for adjudication — I am referring 
to that one relating to the equal distribution of work, as 
far as possible — that in the consideration of that ques- 
tion, the Board feels that it has adequately answered it 
by the laying down of the principles which have been 
read to you by Mr. Brandeis. I might refer to a portion 
of the language which must necessarily be taken alone, 



272 APPENDIX C 

which will help in elucidating what I am referring to. 
That is to say, the Protocol is for the purpose of assisting 
the individual workers in obtaining such security and 
continuity of employment and such equity in the dis- 
tribution of work, and such fairness of general treatment 
and conditions as may be possible and practicable. The 
Board feels that the laying down of those general prin- 
ciples will furnish an adequate guide for the carrying out 
of the Protocol, and that it is not necessary at this time 
to go into the laying down of rules or the settlement of 
definite matters which might properly be left to the 
parties themselves. We feel that this will give an ade- 
quate guide to the employer, to the clerks, to the Com- 
mittee on Immediate Action, and if it should be that any 
question should still exist, of course an appeal from the 
Committee on Immediate Action to this Board would 
permit the Board to pass on the proposition. 

Chairman Brandeis: I ought to add simply this, 
which the Board had requested me before to say that if, 
after the parties have come together in their conferences 
to consider any of these questions in which the Board 
can in any way aid the parties, it stands ready to meet 
again at as early a date as is practicable for that purpose. 

Mr. Holt says that he has nothing to add to what has 
been stated by Mr. Thompson and myself. 

Mr. Hillquit: Mr. Chairman, Mr. Thompson and 
Mr. Holt — In behalf of the Union, which was the moving 
party in this proceeding, I wish once more to thank the 
Board, and all its members, for the time, attention and 
consideration given to our requests laid before them, and 
also for the opinion rendered to-day. We accept the 
opinion, gentlemen, in the spirit in which it was rendered. 
We have submitted to you certain specific requests for 
interpretation, certain specific requests for rules of con- 



DECISION OF BOARD OF ARBITRATION 273 

duct. You have not given us definite, concrete direc- 
tions, but we feel that you have done more. You have 
given us a guide, a guide of general conduct in our rela- 
tions to each other, based upon the highest principles of 
fairness and justice. We could not expect more, we did 
not expect more, and we promise you, gentlemen of the 
Board, that we shall make honest efforts to make this 
guide the standard of our relations, the test of our rela- 
tions with the employers. And I wish to say here, per- 
haps to some extent for the information of you gentlemen 
of the Board, that our position when we come before you 
is necessarily somewhat unfortunate, and may perhaps 
tend to give you an erroneous impression of the actual 
relations existing between us, and the actual situation of 
the industry. We come before you with our difficulties. 
We come before you after some clash or another which is 
bound to arise, but I am happy to say we do not come 
very often before you. But it is natural. We have no 
occasion to apply to you for intervention and guidance 
and assistance when everything is harmonious between 
us. Our industry is, as the Chairman of your Board well 
remarked, one beset with extreme difficulties, the usual 
difficulties of every industry in these times, difficulties 
created by fierce competition among the employers, 
and other conditions, conditions of labor generally, and 
economic conditions. We have yet the special and pe- 
culiar difficulties of a highly seasonal industry, and 
perhaps other difficulties inherent in our industry alone, 
and based, to a large extent also, upon the character both 
of the employers and the employees. 

And I want you to remember, gentlemen, that these 
relations that arise or spring from this situation are such 
as may be classified and generalized and brought before 
you, or laid before the public as an abstract proposition, 



274 APPENDIX C 

but that in actual life they find expression in the daily 
relations of about two thousand employers with about 
fifty thousand employees, of both sexes, and all ages; 
and both the employers and the employees are vitally 
interested in every question that arises in their relations. 
All of these workers have to look for their living to the 
industry, and the conduct of the industry, and the em- 
ployers likewise. Thus we have thrown against each 
other in daily contact the interests of more than fifty 
thousand human beings, the vital interests of such a 
large army of men and women, both employers and em- 
ployees. And with that we have managed, in the course 
of more than four years, to not only maintain the rela- 
tions between us, in the spirit in which we attempted 
to express it in our Protocol, but to improve those rela- 
tions on the whole. It is a most eloquent testimony of 
how well those who have given us this Protocol have per- 
formed their work. I say, on behalf of the organization I 
have the honor to represent, that it shall be our effort to 
continue this work, the work of improving the conditions 
of the industry and protecting the men and women in the 
industry, from day to day, under the Protocol. I know it 
is a difficult task. We all realize it. We know we cannot 
create ideal conditions satisfactory to both parties within 
a very short time, but I am free to say that some of the 
recommendations mentioned by the Chairman we have 
had under consideration. In some of them, as my friend 
Mr. Cohen has stated to the Board, we have made a 
beginning at least of what we hope will be a perfectly 
feasible and workable plan. Others, as far as we are con- 
cerned, we shall take up as speedily as possible and give 
them our earnest consideration. In our future dealings 
with each other, the opinion of this Board rendered here 
to-day will very often have to be referred to. I hope that 



DECISION OF BOARD OF ARBITRATION 275 

no effort will be made on the part of either of the two 
parties to ossify this beautiful living principle enunciated 
by the Chairman; that no effort will be made to codify, 
as the Chairman has expressed it, those general princi- 
ples, but that both sides, and particularly the men 
charged with the machinery for the adjustment of all 
grievances, large or small — and they are bound to come 
up from day to day — will bear the spirit of this decision 
in mind, rather than try to analyze the exact expressions. 
As far as we are concerned, we are not only willing but 
absolutely determined to live up to that spirit, and I 
hope it will not become necessary for either side to con- 
vene another session of this Board, with the request for 
supplemental legislation or rules. We hope, with the 
general rules of guidance given to us, we shall be able to 
settle our few, and, after all, insignificant controversies, 
from time to time, and to continue our period of con- 
structive work for the benefit of the industry and both 
of the parties concerned in it. 

Once more I thank you, gentlemen of the Board, in 
behalf of the Unions. 

Mr. Julius Henry Cohen: I must share with my 
colleague the expressions of gratitude for the great service 
that the Board has given. I suppose that it will be 
inevitable, in the reading of your opinion, as in the hear- 
ing of it, that each side will put emphasis upon those 
portions which it regards of interest to it. But so far as 
the expressions from my colleague with reference to the 
desire to heed the injunction of the Board, to do con- 
structive thinking, planning and invention, I need only 
say that my friend — and may I say that I need no such 
injunction. From the moment that my colleague entered 
into the consideration of this question, I have found him 
ready to consider every proposition for the improvement 



276 APPENDIX C 

of the industry and to consider it frankly and construc- 
tively and to share in the carrying of the burden. And in 
his expressions to-day he has merely continued the spirit 
that began with his entrance into this situation. 

I am very glad indeed that the Board has impressed 
both sides with the importance of spending more time 
upon the root problems of this industry than the spending 
of time upon the smaller litigations. As you have ob- 
served from my presentation, we are of the opinion that 
there is much waste of time in unnecessary litigation. 
The time of the Executive officers should be released for 
the consideration of the big problems of the industry. 
We feel it is a burden to ask men who have to carry the 
responsibilities of factory and office life here, with the 
tremendous ordinary wear and tear, and the extraordi- 
nary wear and tear of abnormal situations, and then ask 
them to give service to an industry in the sense in which 
we lawyers give service to our profession. We are for- 
tunately situated, we lawyers. Our time is arranged so 
that we can give service to our profession, and yet per- 
form our usual vocations, but business men have diffi- 
culty in doing that, especially those men whose livelihood 
is dependent on the business. Our friends are more 
fortunately situated, not merely that their duties are less 
arduous or less exacting but that this is their only duty 
to consider these propositions from an industrial point of 
view, and, as I say, we are very glad to have you bring 
home the importance of separating the time spent upon 
small matters and devoting it to large matters. 

We would have been glad, as my friend would have 
been glad, to have had more definite and specific rulings 
from the Board. As an expression of the spirit that 
should animate the attitude of both parties, neither of us 
can take exception to what you have said. And might 



DECISION OF BOARD OF ARBITRATION 277 

I say on behalf of my clients, that so far as the Associa- 
tion and its officers are concerned, that is the spirit that 
we have sought to carry out in the last four and a half 
years, and we rest upon our record of performance in that 
regard. We do not claim that all of our members are 
perfect. If they were perfect, there would be no need for 
the machinery or the institution we have created, but we 
accept that general obligation, and we have sought by 
the most rigorous means to carry it out in the conduct 
of our members. We are very glad to think your Board 
has seen the importance of those provisions, if not ex- 
pressed, implied in the Protocol, for equalizing the 
standards throughout the industry, for whatever our 
dreams may be in the future form of industrial society, 
we are living to-day in a condition of industrial society 
where neither these institutions nor these factories can 
subsist without some recognition of the competitive prob- 
lem, and certainly no Protocol can exist, no associa- 
tion can exist, if the practical operation of the Protocol 
is to penalize the member of the Association and to offer 
a reward to the non-member. We are very glad to see 
that you have referred to the importance of considering 
that matter, and in presenting again the matter of the 
Protocol label, you have merely carried out the inventive 
thoughts of some of the men who have been with the 
problem for these four and a half years. 

May I, with the same respect I hope always to show, 
bring to the attention of the Board the fact it has not 
passed upon one matter that may be of consequence in 
the future handling of these matters. You will recall 
my friend made the contention that unless there was 
specific reservation of the rights of the parties, the hand- 
ling of cases by the clerks would establish by acquies- 
cence certain propositions of Protocol law. Upon that 



278 APPENDIX C 

matter we have taken our stand, and he has taken his. 
I don't see how I can very well agree with him. I don't 
see how he can very well agree with me, and the Board 
has not aided us in that regard. 

Mr. Hillquit: Just to clarify the situation before the 
Chair answers that: Mr. Cohen has obviously mis- 
understood my contention. It never was my contention 
that any service rendered or course followed without 
specific reservation creates a precedent. I never based 
my contention upon the theory of legal precedent in the 
technical sense. The only time the question of prece- 
dence was at all discussed by me was in connection with 
the practice of equal distribution of work, which I claim 
was so uniform, and so clearly acquiesced in by both 
sides as to definitely establish a custom which has not 
existed before. I do not claim now and I did not claim 
at any time that any act done by either side, by the 
Association or by the Union, perhaps contrary to its 
definite and concrete rights, would constitute a waiver of 
such rights in the future. 

Chairman Brandeis: The explanation which Mr. 
Hillquit has given perhaps relieves the Board of the 
necessity of adding anything, but we do wish to say this: 
We have at all times urged upon the representatives of 
both manufacturers and the Union, to consider, in the 
first place, not so much rights as duties, and to bear 
in mind that this is a human institution; and that in 
order to make it work satisfactorily to both parties, it is 
essential that they should seek adjustments and to re- 
frain from raising issues unnecessarily and from insisting 
upon positions as legal rights. We therefore feel that 
what the clerks were doing in adjusting these problems 
coming up from day to day, should clearly not consti- 
tute precedents, except so far as they might be precedents 



DECISION OF BOARD OF ARBITRATION 279 

for their own action through growing wisdom and judg- 
ment in dealing with the necessarily difficult problems 
which arise. But in no sense should these good offices 
which we were constantly urging upon the clerks be 
construed as creating rights. Indeed, we have on several 
occasions complimented the clerks on their great success 
in effecting these adjustments. It seems to us clear that 
the course hitherto pursued by the clerks of effecting 
adjustments should be continued unhampered. 



APPENDIX D 

FINDINGS AND RECOMMENDATIONS OF 
COUNCIL OF CONCILIATION 

Appointed by the Mayor of the City of New York to con- 
ciliate matters in controversy between the Cloak, Suit and 
Skirt Manufacturers' Protective Association, and the 
International Ladies' Garment Workers' Union and the 
Joint Board of the Cloak and Skirt Makers' Unions. 

July 23, 1915 

The Council appointed by the Mayor of the City of 
New York to assist the Cloak, Suit and Skirt Manufac- 
turers' Protective Association and the International 
Ladies' Garment Workers' Union to reach an agreement 
on the matters at present in controversy between them, 
record on behalf of the general public, their appreciation 
of the peaceful and progressive relations which have 
existed in the cloak-making industry during the past 
five years, a state of things due not only to the enlight- 
ened self-interest of the employers and wage earners, but 
also to the large social ideals which have animated both 
sides. If this fair prospect has for the moment been 
clouded, and these friendly relations have suffered a 
temporary interruption, it is the aim and the hope of this 
Council to pave the way for their resumption, not only 
to prevent ground previously gained from being lost, 
but to bring about advances in new directions. 

280 



FINDINGS, ETC., OF COUNCIL OF CONCILIATION 281 

The Council remind both sides of the very notable 
achievement already to their credit in the creation of the 
covenant known as the "Protocol." And if this instru- 
ment has been found defective in certain particulars it 
should be modified, reconstructed or some more suitable 
agreement put in its place. In the endeavor to work out 
the plan of a new compact of this sort, the Council has 
laid down the following fundamental rule: 

That the principle of industrial efficiency and that of 
respect for the essential human rights of the workers 
should always be applied jointly, priority being assigned 
to neither. Industrial efficiency may not be sacrificed to 
the interests of the workers, for how can it be to their 
interest to destroy the business on which they depend 
for a living, nor may efficiency be declared paramount to 
the human rights of the workers; for how in the long run 
can the industrial efficiency of a country be maintained 
if the human values of its workers are diminished or de- 
stroyed. The delicate adjustment required to reconcile 
the two principles named must be made. Peace and 
progress depend upon complete loyalty in the effort to 
reconcile them. 

We, therefore, find: — 

I. — Under the present competitive system, the prin- 
ciple of industrial efficiency requires that the employer 
shall be free and unhampered in the performance of the 
administrative functions which belong to him, and this 
must be taken to include: 

(a) That he is entirely free to select his employees at 
his discretion. 

(b) That he is free to discharge the incompetent, the 
insubordinate, the inefficient, those unsuited to the shop 
or those unfaithful to their obligations. 

(c) That he is free in good faith to reorganize his shop 



282 APPENDIX D 

whenever in his judgment, the conditions of business 
should make it necessary for him to do so. 

(d) That he is free to assign work requiring a superior 
or special kind of skill to those employees who possess the 
requisite skill. 

(e) That while it is the dictate of common sense, as 
well as common humanity, in the slack season to dis- 
tribute work as far as possible equally among wage 
earners of the same level and character of skill, this 
practice cannot be held to imply the right to a permanent 
tenure of employment, either in a given shop or even in 
the industry as a whole. A clear distinction must be 
drawn between an ideal aim and a present right. 

The constant fluctuations — the alternate expansions 
and contractions to which the cloak-making industry is 
so peculiarly subject, and its highly competitive char- 
acter, enforce this distinction. But an ideal aim is not, 
therefore, to be stigmatized as Utopian, nor does it 
exclude substantial approximations to it in the near 
future. Such approximations are within the scope of 
achievement, by means of earnest efforts to regularize 
employment and by such increase of wages as will secure 
an average adequate for the maintenance of a decent 
standard of living throughout the year. The attempt, 
however, to impose the ideal of a permanent tenure of 
employment upon the cloak-making industry in its 
present transitional stage is impracticable, calculated to 
produce needless irritation and injurious to all con- 
cerned. 

II. — In accordance with the rule above laid down, that 
the principle of efficiency and that of respect for the 
human rights of the workers must be held jointly and 
inseparably, we lay down: 

(a) That the workers have an inalienable right to 



FINDINGS, ETC., OF COUNCIL OF CONCILIATION 283 

associate and organize themselves for the purpose of 
maintaining the highest feasible standard as to wages, 
hours and conditions, and of still further raising the 
standards already reached. 

(b) That no employee shall be discharged or discrim- 
inated against on the ground that he is participating 
directly or indirectly in union activities. 

(c) That the employees shall be duly safeguarded 
against oppressive exercise by the employer of his func- 
tions in connection with discharge and in all other deal- 
ings with the workers. It is to be carefully noted that 
the phrase " oppressive exercise of functions" need not 
imply a reflection on the character and intentions of the 
high-minded employer. 

An action may be oppressive in fact, even though in- 
spired by the most benevolent purpose. This has been 
amply demonstrated by experience. No human being 
is wise enough to be able to trust his sole judgment in 
decisions that affect the welfare of others; he needs to be 
protected, and if he is truly wise, will welcome protection 
against the errors to which he is liable in common with 
his kind, as well as against the inspirations of passion or 
selfishness. 

For this reason, a tribunal of some kind is necessary, 
in case either of the parties to this covenant believes itself 
to be unjustly aggrieved. And because the construction 
of such a tribunal is a delicate and difficult task, demand- 
ing the greatest care, lest on the one hand the movements 
of industry be clogged by excessive litigation, and lest 
on the other hand the door of redress be closed against 
even the most real and justified complaint; therefore 

III. — In accordance with these general principles, the 
Council propose that an agreement be entered into by 
the Cloak, Suit and Skirt Manufacturers' Protective 



284 APPENDIX D 

Association, and the International Ladies' Garment 
Workers' Union and the Joint Board of Cloak and Skirt 
Makers' Unions, embodying these principles and provid- 
ing the following: 

(a) Every complaint from either organization to the 
other shall be in writing, and shall specify the facts which, 
in the opinion of the complaining organization, consti- 
tute the alleged grievance, and warrant its presentation 
by one organization to the other. Such complaints shall 
be investigated in the first instance by the representa- 
tives of the two associations, chosen for the purpose, it 
being impressed upon them that they use and exhaust 
every legitimate effort to bring about an adjustment in 
an informal manner. In case, however, an adjustment 
by them be not reached, the matters in dispute shall be 
referred for final decision to a 

(b) Trial Board of three, consisting of one employer, 
one worker and one impartial person, the latter to be 
selected by both organizations, to serve at joint expense 
and to be a standing member in all cases brought before 
the Board. The remaining two members shall be selected 
as follows: 

The Association and the Union shall each make up a 
list of ten persons, to be approved by the other. From 
these two lists, as each case arises, each party shall select 
one person. 

IV. — The articles of the Protocol numbered First, 
Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, 
Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Four- 
teenth and Fifteenth are hereby incorporated in this 
agreement except as herein expressly revised and except 
as hereafter modified after the recommendations of the 
Council. 

V. — This Council has been requested by the Mayor 



FINDINGS, ETC., OF COUNCIL OF CONCILIATION 285 

to continue as a commission to investigate thoroughly 
the fundamental problems of regularization, standards of 
wages and enforcement of standards throughout the 
industry, of trade education, and of a more thorough 
organization of the industry, and on the basis of such 
investigation it shall submit a constructive policy to both 
organizations. 
VI. — Wages. 

1. As a temporary arrangement until a maturer study 
of the industry shall lead to a final adjustment, the 
standard observed for piece workers in fixing piece-work 
rates shall be at the rate of 70 cents an hour for each 
hour of continuous work for operators and piece tailors, 
and 50 cents an hour for each hour of continuous work 
for finishers, taking the worker of average skill as the 
basis of computation and making no allowance for idle- 
ness. 

Piece prices shall be settled between the employer 
and a price committee. If the parties cannot agree, they 
shall call in price adjusters furnished by both sides. 
Wages for week workers shall be as follows: 

For cutters $27 . 50 

For skirt cutters 23 . 50 

For jacket upper pressers 25 . 00 

Skirt upper pressers 23 .00 

Skirt under pressers 18.00 

Jacket under pressers 21 . 00 

Sample tailors 23 . 00 

Skirt basters 15 . 00 

Part pressers 15 . 50 

Canvas cutters 13 . 00 

Skirt finishers $11.00, provided each department be 
permitted to have one learner to six finishers. 

Reefer pressers and under pressers to be paid as other 



286 APPENDIX D 

pressers providing the Unions prove their contention 
that such wages have been paid outside of the Associa- 
tion houses. 

Piece prices for buttonhole makers: Class A, $1.30 per 
hundred buttonholes; Class B, 90 cents per hundred. 

VII. For Determination by Arbitration. 

That the following questions shall be submitted to the 
arbitration of this, Council, their decision to be rendered 
within thirty days, and to be accepted as final and bind- 
ing. 

(a) Whether the pressers and piece workers shall 
during eight weeks in each season be permitted to work 
overtime on Saturdays until four o'clock. 

(6) What legal holidays shall be observed in the 
Cloak, Suit and Skirt Industry, and under what condi- 
tions they shall be observed. 

VIII. — It is distinctly understood that there shall be 
no shop strike nor general strike, nor individual nor 
general lockout during the term of this agreement. 

IX. — The Union and the Association, with the assist- 
ance of the Council, will, as soon as practicable, create a 
Joint Board of Supervision and Enforcement of Stand- 
ards throughout the industry. 

X. — Since the Council will continue in existence for 
study and constructive recommendations, it will be 
available whenever the parties desire to consult with it, 
and if either organization feels aggrieved against the 
other, such organization may address the Council upon 
the subject, and the Council will do the best it can to 
assist. 

Finally, since peace in industry, as in families and 
among states, is the offspring of good will, and since no 
peace can be sound or enduring that is not based on this 
indispensable prerequisite, it is agreed that the leaders 



FINDINGS, ETC., OF COUNCIL OF CONCILIATION 287 

on both sides shall exert their utmost endeavors to create 
a spirit of mutual good will among the members of 
their respective organizations, such good will taking the 
specific form of a disposition to recognize the inherent 
difficulties which each side has to meet — a spirit of large 
patience under strain, and, withal, a belief in the better 
elements which exist in human nature, be it among em- 
ployers or wage earners, and the faith that an appeal 
to these elements will always produce beneficent results. 
These recommendations, when accepted by both 
parties, shall constitute the agreement between them. 
This agreement to enter into force on the date hereof 
and to continue for the period of two (2) years, and 
thereafter for like periods of two (2) years, unless ter- 
minated by either party on two months' notice. 

Any modification of the terms of the agreement, re- 
quested by either party, shall be presented to the other 
at least two (2) months before the termination of any 
period. 

Felix Adler {Chairman), 
Charles L. Bernheimer, 
Louis D. Brandeis, 
Henry Bruere, 
George W. Kirchwey, 
Walter C. Noyes, 

Council on Conciliation. 
July 23, 1915. 



APPENDIX E 

INDUSTRIAL AGREEMENTS 

(Introduced 191 2 by J. Ramsey MacDonald) 

A Bill 

to 

Make Agreements come to voluntarily between Employers 
and Workmen in the Port of London legally enforcible on 
the whole Trade. 

Be it Enacted by the King's most Excellent Majesty, 
by and with the advice and consent of the Lords Spiritual 
and Temporal, and Commons, in this present Parliament 
assembled, and by the authority of the same, as fol- 
lows: — 

1. Whenever and so long as an agreement between 
employers and workmen in or about the Port of London 
concerning wages, hours, or other conditions of labour is 
registered by the Board of Trade under the provisions of 
this Act, the terms of such an agreement shall be implied 
terms of every contract for the employment of a work- 
man in the Port of London, and any agreement applying 
thereto concerning wages, hours, or other conditions of 
labour, in so far as it is in contravention of this pro- 
vision, shall be void. 

2. (1) Any representative body of employers and 
workmen in the Port of London who have made an 
agreement regarding any of the matters referred to in 

288 



INDUSTRIAL AGREEMENTS 289 

the first section of this Act may apply to the Board of 
Trade to have such an agreement registered under this 
Act. 

(2) The application must be accompanied by copies 
of the agreement, particulars of the representative char- 
acter of the persons who have made the agreement, with 
such other information as the Board of Trade may rea- 
sonably require. 

(3) The Board of Trade, on being satisfied that such 
an agreement has been come to by persons representative 
of employers and workmen in the trade, shall register 
such agreement, but in no case shall the Board of Trade 
refuse to register if the persons making application to be 
registered either — 

(a) Represent one-third of the employers and work- 
men directly affected by the agreement; or 

(b) Are persons who deal with at least one-half of the 
total volume of the trade; 

provided that if the representatives of the employers 
and the workmen are appointed by unions, or federa- 
tions, or other combinations, any employer or firm of 
employers, and any workman engaged in the trade or 
section of the trade subject to the agreement, is at liberty 
to join the union, federation, or combination on reason- 
able conditions. 

(4) Any body of persons who have registered an agree- 
ment under this Act shall be entitled to have their agree- 
ment removed from the register on sending to the Board 
of Trade a written application to that effect, and the 
Board of Trade, on being satisfied that the persons who 
made the agreement are no longer representative persons, 
may themselves remove the agreement from the register. 

3. In this Act the expression "Port of London" has 
the like meaning as it has in the Port of London Act, 



290 APPENDIX E 

1908. The expression "workman" means a workman 
who works wholly or in part within the area of the Port of 
London. The expression " employer" means any person 
or body of persons who employs workmen either wholly 
or in part within the area of the Port of London. 

4. This Act may be cited as the Industrial Agreements 
Act, 1912. 



APPENDIX F 

SKELETON OUTLINE OF PROVISIONS OF A BILL 

I. Create a "National Industrial Board" with powers 
analogous to those of the English Industrial Council 
under the English "Trade Disputes Act." 

II. Equal representation to organized labor, organized 
employers, and the public, appointed by the President 
for long terms. 

III. Adequate salary paid to the Chairman (to be a 
man of the type of Sir George Askwith). 

IV. In addition to the powers included in the English 
" Trade Disputes Act," give power to 

(a) Consider and investigate all matters concerning 
sanitation and safety. 

(b) To revise trade agreements upon the appeal of the 
parties. 

(c) To hear appeals from Boards of Conciliation or 
Arbitration established under trade agreements. 

(d) To gather statistics upon all matters involving 
wage increase. 

V. All trade agreements to be validated by registra- 
tion with the "National Industrial Board." 

VI. Whenever it shall appear that the agreement 
covers a substantial portion of the industry, the parties 
to the agreement may apply for its extension to the entire 
industry. Upon proper hearings, to those not yet 
affected, the Industrial Board may make an order ex- 
tending the agreement to cover the entire industry. 

VII. Trade agreements to be authorized which may 

291 



292 APPENDIX F 

provide for the preferential employment of members of 
the trades union parly to the agreement, and for Wage- 
Scale Boards, Boards of Conciliation and Arbitration. 
Grievance Boards, Boards of Sanitary Control, Boards of 
Apprentices, etc., etc. 

VIII. The National Industrial Board, before register- 
ing any trade agreement, to make careful investigation of 
the surrounding facts, and if it finds that the agreement 
is made in good faith, and is for the best interests of the 
working people and the employers in the industry, it 
may certify to the fact, and its certificate shall raise an irre- 
buttable presumption in any court of law or equity that such 
agreement was in fact entered into in good faith, and not in 
restraint of trade. 

IX. Where agreements create methods of arbitration 
by Boards of Arbitration, Conciliation, Grievances, or 
the like, the decision in writing of such Board may be 
filed in the office of the clerk of any federal court, and a 
motion may be made to confirm the report on notice io 
the party against whom the decision has been rendered, 
and when such decision shall be confirmed, a copy of the 
decree may be entered in the clerk's office. 

X. An appeal may be taken from any award by a 
Board of Arbitration to the National Industrial Board. 

XI. Where any agreement voluntarily entered into 
provides methods of arbitration or conciliation, it shall 
be lawful for either party to terminate the same, upon 
three months' notice, but if not terminated, it shall not 
be lawful for either party to engage in any strike, walk- 
out, or lockout before the controversy is submitted to 
such tribunal. 






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